White Coat Waste Project v. United States Department of Veterans Affairs ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WHITE COAT WASTE PROJECT
Plaintiff,
v. No. 17-cv-1155 (EGS)
UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS,
Defendant.
MEMORANDUM OPINION
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.
2
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—
1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
3
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
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“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
2 As noted in WCW I, the VA does not dispute WCW’s assertion that
“the [Animal Welfare Act (“AWA”), 7 U.S.C. § 2131, et seq.]
today requires that every research facility that uses animals
for laboratory experiments must have an Institutional Animal
Care and Use Committee (IACUC) which evaluates the facility’s
use and care of animals used in experiments.” WCW I, 404 F.
Supp. 3d at 93 n.2; see also Pl.’s Mem. in Opp’n to Def.’s Mot.
for Summ. J. & in Supp. of Pl.’s Cross-Mot. for Summ. J. (“Pl.’s
Mem.”), ECF No. 13-1 at 14.
5
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
3 The VA invoked Exemptions 3, 5, 6, and 7(F). Fuemmeler Decl.,
ECF No. 10-5 at 3 ¶ 11, 4 ¶ 14. Exemption 3 protects from
disclosure materials “specifically exempted from disclosure by
statute,” if such statute either “(i) requires that the matters
be withheld from the public in such a manner as to leave no
discretion on the issue” or “(ii) establishes particular
criteria for withholding or refers to particular types of
matters to be withheld.” 5 U.S.C. § 552(b)(3). Exemption 5
covers “inter-agency or intra-agency memorandums or letters
which would not be available by law to a party other than an
agency in litigation with the agency[.]” Id. § 552(b)(5).
Exemption 6 protects “personnel and medical files and similar
files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy[.]” Id. § 552(b)(6).
Exemption 7(F) applies to “records or information compiled for
law enforcement purposes, but only to the extent that the
production of such law enforcement records or information . . .
could reasonably be expected to endanger the life or physical
safety of any individual.” Id. § 552(b)(7)(F).
6
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
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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
8
conclusions to withhold the names of the principal investigators
and the title of ACORP # 02235. Pl.’s SOMF, ECF No. 13-2 at 15
¶¶ 54-55. On November 1, 2017, while this case was being
litigated, WCW filed a separate, related action to obtain
records concerning the experiments at Stokes VAMC. See Compl.,
WCW I, Civ. Action No. 17-2264, ECF No. 1 at 1 ¶ 1. Because WCW
was awaiting a final agency determination on its FOIA requests
in WCW I, WCW argued that “consolidation [of the two cases]
would cause substantial delay to the resolution of the initial
action and because there are only limited common issues of fact
and law between the two cases.” Pl.’s Resp. to Order to Show
Cause, ECF No. 12 at 1. The Court did not exercise its
discretion to consolidate the related actions under Federal Rule
of Civil Procedure 42(a)(2). See Min. Order of Nov. 20, 2017.
In this case, the parties filed cross-motions for summary
judgment. See, e.g., Def.’s Mot. for Summ. J. (“Def.’s Mot.”),
ECF No. 10 at 1-2; Pl.’s Cross Mot. for Summ. J. (“Pl.’s Mot.”),
ECF No. 13 at 1-3. 4 After those motions became ripe, the Court
4 Neither party attached proposed orders to the motions and
opposition briefs, as required by Local Civil Rule 7.1(c). See,
e.g., Def.’s Mot., ECF No. 10 at 1-2; Def.’s Mem. of P. & A. in
Supp. of Def.’s Mot. (“Def.’s Mem.”), ECF No. 10-1 at 1-14;
Pl.’s Mot., ECF No. 13 at 1-3; Pl.’s Mem., ECF No. 13-1 at 1-53;
Def.’s Reply, ECF No. 16 at 1-12; Pl.’s Reply, ECF No. 17 at 1-
21. The Court construes the VA’s reply brief—styled “Defendant’s
Reply in Support of Its Renewed Motion for Summary Judgment”—as
its reply in support of its motion for summary judgment and in
opposition to WCW’s cross-motion for summary judgment. See
9
referred the motions to a Magistrate Judge for a Report and
Recommendation (“R & R”), and the Court stayed the case. Min.
Order of Mar. 8, 2018. Before a decision on the pending motions
in the instant action, this Court resolved the parties’ cross-
motions for summary judgment in the related case. See WCW I, 404
F. Supp. 3d at 109; see also Final Order, WCW I, Civ. Action No.
17-2264 (D.D.C. Feb. 6, 2020), ECF No. 44 at 1-7. On August 29,
2019, this Court in WCW I granted in part and denied in part
those motions, finding that: (1) the VA improperly withheld the
principal investigator’s name under Exemption 5; and (2) the
VA’s declarations, which contained inadmissible hearsay, failed
to demonstrate a substantial privacy interest in the principal
investigator’s name under Exemption 6. WCW I, 404 F. Supp. 3d.
at 99, 106-07. The Court held in abeyance WCW’s cross-motion for
summary judgment as to the Exemption 6 issue and directed the VA
to submit additional information as to the asserted privacy
interest of the Stokes VAMC’s principal investigator. Id. at
107.
On February 6, 2020, the Court granted summary judgment in
favor of WCW on the Exemption 6 issue, finding that: (1) the VA
Def.’s Reply, ECF No. 16 at 1 (emphasis added). As WCW correctly
notes, the VA’s motion for summary judgment was not “ruled on,
stricken, or withdrawn, and as a result it [had] not been
‘renewed’ in any way.” Pl.’s Reply, ECF No. 17 at 6 n.1; see
generally Docket for Civ. Action No. 17-1155.
10
failed to meet its burden of establishing a substantial privacy
interest in the name of the Stokes VAMC’s principal
investigator; and (2) the public interest outweighed any
asserted privacy interest. Final Order, WCW I, Civ. Action No.
17-2264 (D.D.C. Feb. 6, 2020), ECF No. 44 at 4-7. A few days
later, on February 11, 2020, the Court granted WCW’s motion to
lift the stay in this case, and the Court vacated the referral
for the R & R. Min. Order of Feb. 11, 2020.
D. The Motions
In moving for summary judgment in the instant action, the
VA advances five primary arguments: (1) it conducted adequate
and reasonable searches for responsive materials, Def.’s Mem.,
ECF No. 10-1 at 4-5; (2) it properly invoked Exemption 6 to
withhold the names of the principal investigators and research
personnel, claiming that there are substantial privacy interests
at stake and there is no public interest in the names, id. at 6-
11; (3) it appropriately withheld certain portions of the
research protocols, including the names of the principal
investigators and researchers, under Exemption 5 because those
documents are pre-decisional and deliberative, id. at 11-13;
(4) it properly redacted the title of ACORP # 02235 under
Exemption 3 because “ACORP # 02235 contains information that is
confidential and privileged, trade secret information, as well
as information that is pending patent,” id. at 13; and (5) it
11
has not withheld any reasonably segregable, non-exempt
information, id. at 14.
WCW argues that it is entitled to summary judgment for five
main reasons: (1) federal government animal researchers do not
have a substantial privacy interest in their names because their
names are publicly available on government websites, including
the VA’s own website, and the McGuire VAMC researchers regularly
include their names in academic publications about the dog
experiments, Pl.’s Mem., ECF No. 13-1 at 27-31; (2) the public
interest in the disclosure of the names is strong because the
dog experiments have prompted federal and state lawmakers to
demand accountability, generated media coverage, and sparked
criticism from the public, id. at 31-45; (3) the VA improperly
invoked Exemption 5 because the factual information contained
within the research protocols does not reveal the agency’s
deliberations or opinions, and the protocols are not pre-
decisional given that those documents are the decisions, id. at
49-50; (4) the VA cannot rely on 35 U.S.C. § 205 as the relevant
withholding statute under Exemption 3 to withhold the title of
ACORP # 02235 because Section 205 protects information “for a
reasonable time in order for a patent application to be filed,”
and “the patent application, by the agency’s own account, has
already been filed,” id. at 52; and (5) the VA waived the
invocation of the FTTA as the withholding statute under
12
Exemption 3 because the VA did not advance such an argument in
its opening brief, id.
Over the course of this litigation, the parties narrowed
the scope of the disputed issues to: (1) the disclosure of the
identities of the principal investigators; and (2) the title of
ACORP # 02235. See Pl.’s Reply, ECF No. 17 at 6-7. WCW does not
challenge that the VA has adequately conducted reasonable
searches, and properly segregated the non-exempt information
from the exempt information. Id.; see also Def.’s Reply, ECF No.
16 at 11-12. Nor does WCW contest the redactions under Exemption
7(F) in the Vaughn index. See Pl.’s Mem., ECF No. 13-1 at 12-52;
see also Def.’s Ex. 1, ECF No. 10-3 at 1-4 (Vaughn Index). 5 The
briefing is now complete, and the motions are ripe and ready for
the Court’s adjudication.
III. Legal Standard
The “vast majority” of FOIA cases can be resolved on
summary judgment. Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A court may
grant summary judgment only if “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
5 “A Vaughn index describes the documents withheld or redacted
and the FOIA exemptions invoked, and explains why each exemption
applies.” Prison Legal News v. Samuels, 787 F.3d 1142, 1145 n.1
(D.C. Cir. 2015) (citing Vaughn v. Rosen, 484 F.2d 820 (D.C.
Cir. 1973); Keys v. DOJ, 830 F.2d 337, 349 (D.C. Cir. 1987)).
13
matter of law.” Fed. R. Civ. P. 56(a). Likewise, in ruling on
cross-motions for summary judgment, the court shall grant
summary judgment only if one of the moving parties is entitled
to judgment as a matter of law upon material facts that are not
genuinely disputed. See Citizens for Responsibility & Ethics in
Wash. v. DOJ, 658 F. Supp. 2d 217, 224 (D.D.C. 2009) (citation
omitted). Under FOIA, “the underlying facts and the inferences
to be drawn from them are construed in the light most favorable
to the FOIA requester[,]” and summary judgment is appropriate
only after “the agency proves that it has fully discharged its
[FOIA] obligations . . . .” Moore v. Aspin, 916 F. Supp. 32, 35
(D.D.C. 1996) (citations omitted).
When considering a motion for summary judgment under FOIA,
the court must conduct a de novo review of the record. See
5 U.S.C. § 552(a)(4)(B). The court may grant summary judgment
based on information provided in an agency’s affidavits or
declarations when they are “relatively detailed and non-
conclusory,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991) (citation omitted), and “not controverted by
either contrary evidence in the record nor by evidence of agency
bad faith,” Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981). Such affidavits or declarations are “accorded
a presumption of good faith, which cannot be rebutted by ‘purely
speculative claims about the existence and discoverability of
14
other documents.’” SafeCard Servs., 926 F.2d 1197 at 1200
(citation omitted).
IV. Analysis
As in WCW I, the core of the parties’ dispute in this case
is whether the VA properly withheld the names of the principal
investigators at McGuire VAMC under Exemptions 5 and 6. Compare
Pl.’s Reply, ECF No. 17 at 6, 10-19, with WCW I, 404 F. Supp. 3d
at 96 (“The sole dispute is whether the VA’s redactions of
[Stokes VAMC’s] principal investigator’s name . . . were
justified under Exemptions 5 and 6.”). In each case, the parties
presented similar arguments as to the VA’s withholdings. Compare
Def.’s Mem., ECF No. 10-1 at 6-13, and Pl.’s Mem., ECF No. 13-1
at 22-51, with WCW I, 404 F. Supp. 3d at 94-96. This case
differs from WCW I in that the VA withheld the title of ACORP
# 002235 pursuant to Exemption 3 while releasing the titles of
the other protocols. See Def.’s Mem., ECF No. 10-1 at 13.
The Court addresses the contested FOIA Exemptions in turn,
concluding that: (1) the VA improperly withheld the names of the
principal investigators under Exemptions 5 and 6; and (2) the VA
properly invokes the FTTA as the withholding statute under
Exemption 3 to redact the title of ACORP # 02235. 6
6 WCW does not contest the VA’s withholdings under Exemption
7(F), and the VA does not move for summary judgment as to those
withholdings. See Def.’s Mem., ECF No. 10-1 at 5-13; see also
Pl.’s Mem., ECF No. 13-1 at 22-52. WCW does not challenge the
15
A. The VA’s Invocation of Exemption 5 Was Improper
The VA invokes Exemption 5’s deliberative process privilege
to protect the claimed deliberative nature of the protocols and
the integrity of the research process. See Def.’s Mem., ECF No.
13-1 at 12-13. In WCW I, this Court explained that Exemption 5’s
deliberative process privilege is one of the privileges against
discovery, and that privilege protects from disclosure documents
that would reveal an agency’s deliberations prior to arriving at
a particular decision. 404 F. Supp. 3d at 97 (citing Dent v.
Exec. Office for U.S. Att’ys, 926 F. Supp. 2d 257, 267–68
(D.D.C. 2013)). Documents withheld under the deliberative
process privilege must be both “predecisional” and
“deliberative.” Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537
(D.C. Cir. 1993). A communication is pre-decisional if “it was
generated before the adoption of an agency policy” and
adequacy of the searches, and the segregability determinations.
Pl.’s Reply, ECF No. 17 at 6-7. Neither does WCW challenge the
redactions to: (1) the principal investigators’ other personal
identifying information; or (2) the non-principal investigators’
information. See id. at 6-8. Although WCW does not contest these
issues, the Court has an independent obligation to determine
whether the VA has met its FOIA obligations. See Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007). Having
reviewed the VA’s declarations and the Vaughn index, see, e.g.,
Def.’s Ex. 1, ECF No. 10-3 at 1-4; Fuemmeler Decl., ECF No. 10-5
at 1-5; Maragos Decl., ECF No. 10-6 at 2-3, the Court finds that
the VA has fulfilled its obligations with respect to these
uncontested matters. Accordingly, the Court GRANTS the VA’s
motion for summary judgment as to the adequacy of the searches
and the segregability determinations.
16
deliberative if it “reflects the give-and-take of the
consultative process.” Coastal States Gas Corp. v. Dep’t of
Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). “Even if the
document is predecisional at the time it is prepared, it can
lose that status if it is adopted, formally or informally, as
the agency position on an issue[.]” Id. Courts construe the
deliberative process privilege “as narrowly as consistent with
efficient Government operation.” United States v. Phillip
Morris, 218 F.R.D. 312, 315 (D.D.C. 2003) (quoting Taxation with
Representation Fund v. IRS, 646 F.2d 666, 667 (D.C. Cir. 1981)).
Before addressing the substantive issue of whether
Exemption 5’s deliberative process privilege applies to the
names of the principal investigators, WCW first argues—and the
VA does not dispute—that “[n]owhere in the 283 pages of animal
protocols that the [VA] produced does it identify even a single
redaction based on Exemption 5” and the VA’s “Vaughn index does
not identify even a single Exemption 5 assertion.” Pl.’s Mem.,
ECF No. 13-1 at 47; see also Pl.’ Reply, ECF No. 17 at 17
(“[WCW] also provided the [VA’s] entire production to
demonstrate that the [VA] does not assert Exemption 5 as a basis
for withholding in any of the 288 pages it produced.”). But the
VA asserted Exemption 5 at the administrative level, and the VA
points out that one of the agency’s declarants avers that the VA
withheld the names of the principal investigators and other
17
research personnel under Exemption 5. E.g., Def.’s Reply, ECF
No. 16 at 9; Fuemmeler Decl., ECF No. 10-5 at 3 ¶ 11, 4 ¶ 13.
“[T]he exemption only need be raised at a point in the district
court proceedings that gives the court an adequate opportunity
to consider it,” and WCW “has cited no . . . case that supports
a different proposition.” Sciba v. Bd. of Governor of Fed.
Reserve Sys., No. CIV.A.04-1011, 2005 WL 758260, at *1 n.3
(D.D.C. Apr. 1, 2005).
To the extent that the VA asserts Exemption 5, the Court is
persuaded by WCW’s next argument that the names of the principal
investigators are neither pre-decisional nor deliberative. See
Pl.’s Mem., ECF No. 13-1 at 50. 7 In the VA’s view, “[t]he 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, have frank and open
discussions before the research is completed, and stop the
research prematurely.” Def.’s Mem., ECF No. 10-1 at 12. WCW
7 Because WCW solely seeks the names of the principal
investigators, see Pl.’s Reply, ECF No. 17 at 6, the Court need
not decide whether the protocols themselves are “pre-decisional”
or “deliberative” within the meaning of Exemption 5, see
Judicial Watch, Inc. v. Dep’t of the Navy, 25 F. Supp. 3d 131,
140 (D.D.C. 2014) (declining to decide whether a document was
pre-decisional because the parties only challenged the redacted
signature pages in the document); see also WCW I, 404 F. Supp.
3d at 98 n.9 (same).
18
contends that “[t]he investigators’ names are not predecisional”
because “[t]here is no agency policy or law being developed
through the use of principal investigators’ names.” Pl.’s Mem.,
ECF No. 13-1 at 50. And WCW argues that the names are not
deliberative because “[t]he agency is not using the names of
investigators to formulate agency policy” and such “information
fits squarely within the type of factual material that the
deliberative process privilege does not protect.” Id. The Court
agrees.
“[T]he agency has the burden of establishing what
deliberative process is involved,” Coastal States Gas Corp.,
617 F.2d at 868, but the VA fails to demonstrate how the
principal investigators’ names “implicate any deliberative
process that may have gone into the creation of [each protocol]
as a whole,” Judicial Watch, Inc. v. Dep’t of the Navy, 25 F.
Supp. 3d at 140. In Ancient Coin Collectors Guild v. United
States Department of State, 641 F.3d 504, 513 (D.C. Cir. 2011),
the United States Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”) held that “the legitimacy of
withholding does not turn on whether the material is purely
factual in nature or whether it is already in the public domain,
but rather on whether the selection or organization of facts is
part of an agency’s deliberative process.” In that case, the
D.C. Circuit concluded that Exemption 5 covered the factual
19
summaries in a federal advisory committee’s reports regarding
import restrictions on cultural artifacts because those
documents: (1) “were culled by the Committee from the much
larger universe of facts presented to it,” id. at 513 (citation
omitted); (2) reflected an “exercise of discretion and judgment
calls,” id.; and (3) “include[d] lists of events selected to
show whether a given type of item ha[d] been pillaged,” id. at
514.
As in WCW I, the names of the principal investigators
neither reflect an “exercise of judgment as to what issues”
should bear on the research, nor involve the selection of facts
as part of the agency’s deliberative process. WCW I, 404 F.
Supp. 3d at 98 (quoting Ancient Coin Collectors Guild, 641 F.3d
at 513); see also Petroleum Info. Corp. v. U.S. Dep’t of
Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (“Under the
deliberative process privilege, factual information generally
must be disclosed, but materials embodying officials’ opinions
are ordinarily exempt.”). The names of the principal
investigators conducting the experiments at McGuire VAMC are
“indisputably ‘factual,’” and those names “cannot be described
as the ‘materials embodying officials’ opinions.’” Judicial
Watch, Inc. v. Dep’t of the Navy, 25 F. Supp. 3d at
140 (quoting Petroleum Info. Corp., 976 F.2d at 1434).
20
The VA’s argument—that the principal investigators “may
fear for their safety and stop the research prematurely,” Def.’s
Reply, ECF No. 16 at 9 (quoting Fuemmeler Decl., ECF No. 10-5 at
4 ¶ 13)—is unavailing. The VA fails to demonstrate that
disclosure of the names of the principal investigators “would be
likely to ‘stifle honest and frank communication within the
agency.’” Petroleum Info. Corp., 976 F.2d at 1439 (quoting
Coastal States Gas Corp., 617 F.2d at 866). It is undisputed
that “[r]esearchers at McGuire VAMC also regularly attach their
names and a variety of other personal information to
publications detailing their research.” Def.’s Reply, ECF No. 16
at 10 (quoting Pl.’s Mem., ECF No. 13-1 at 29). It is
uncontested that the NIH’s “database reveals at least ten
researchers at McGuire VAMC attaching their names to articles
detailing dog research.” Pl.’s Mem., ECF No. 13-1 at 29 (citing
Pl.’s SOMF, ECF No. 13-2 at 13 ¶¶ 40-44, 14 ¶¶ 45-48, 15 ¶¶ 49-
50). While is true that the “key question” is whether the
release of information has the ability to “discourage candid
discussion within the agency,” Access Reports v. DOJ, 926 F.2d
1192, 1195 (D.C. Cir. 1991) (citation omitted), the VA fails to
provide sufficient justifications to withhold the names of the
principal investigators pursuant to Exemption 5’s deliberative
process privilege. The Court therefore finds that the VA has not
carried its burden of demonstrating that disclosure of the
21
principal investigators’ names “is likely in the future to
stifle honest and frank communication within the agency.”
Coastal States Gas Corp., 617 F.2d at 866. Accordingly, the
Court GRANTS WCW’s cross-motion for summary judgment and DENIES
the VA’s motion for summary judgment as to Exemption 5.
B. The VA Improperly Withheld the Principal
Investigators’ Names Under Exemption 6
The Court next considers the issue of whether the VA
properly invoked Exemption 6. As stated in WCW I, “Exemption 6
permits withholding of information when two requirements have
been met.” WCW I, 404 F. Supp. 3d at 99 (citing U.S. Dep’t of
State v. Wash. Post Co., 456 U.S. 595, 598 (1982)). First, “the
information must be contained in personnel, medical or ‘similar’
files.” Wash. Post Co., 456 U.S. at 598. The phrase “similar
files” is understood broadly to include any “[g]overnment
records on an individual which can be identified as applying to
that individual.” Id. at 602 (citation and internal quotation
marks omitted). Exemption 6 covers “not just files, but also
bits of personal information, such as names and addresses, the
release of which would create[] a palpable threat to privacy.”
Judicial Watch, Inc. v. FDA, 449 F.3d 141, 152 (D.C. Cir. 2006)
(citation and internal quotation marks omitted).
Next, “the information must be of such a nature that its
disclosure would constitute a clearly unwarranted invasion of
22
personal privacy.” Wash. Post Co., 456 U.S. at 598. This second
requirement demands that the Court “weigh the privacy interest
in non-disclosure against the public interest in the release of
the records in order to determine whether, on balance, the
disclosure would work a clearly unwarranted invasion of
privacy.” Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999)
(citation and internal quotation marks omitted). The only
relevant public interest in this balancing analysis is “the
extent to which disclosure of the information sought would
she[d] light on an agency’s performance of its statutory duties
or otherwise let citizens know what their government is up to.”
Id. (citation and internal quotation marks omitted).
1. The Principal Investigators’ Names Fall Within
the Broad Meaning of “Similar Files”
WCW I is a starting point for the Court’s Exemption 6
analysis. In WCW I, this Court broadly construed the phrase
“similar files” and found that the name of the principal
investigator at Stokes VAMC fell within Exemption 6’s “similar
files” category. 404 F. Supp. 3d at 99-101. As WCW acknowledged
in WCW I, WCW recognizes in this case that the phrase “similar
files” has a broad meaning. Pl.’s Mem., ECF No. 13-1 at 24.
Indeed, the D.C. Circuit has broadly interpreted “‘[s]imilar
files’ [to] include ‘detailed Government records on an
individual which can be identified as applying to that
23
individual[,]’” including his or her name. Prison Legal News,
787 F.3d at 1146–47 (quoting Judicial Watch, Inc. v. DOJ, 365
F.3d 1108, 1124 (D.C. Cir. 2004)). In this case, the names of
the principal investigators qualify as “similar files” under
D.C. Circuit case law. See id.
Nonetheless, WCW makes the same argument that this Court
rejected in WCW I: “the principal investigators’ names on the
animal research protocols are ‘essentially business,’ rather
than personal, in nature.” Pl.’s Mem., ECF No. 13-1 at 25; see
also WCW I, 404 F. Supp. 3d at 100. WCW’s argument is unavailing
because the Supreme Court has recognized that Exemption 6 covers
“information which applies to a particular individual.” Wash.
Post Co., 456 U.S. at 602. To be sure, the D.C. Circuit in
Judicial Watch, Inc. v. Food & Drug Administration held that the
agency there “fairly asserted abortion-related violence as a
privacy interest for both the names and addresses of persons and
businesses associated with [the controversial drug]
mifepristone,” concluding that the non-disclosure of the names
of the agency personnel and other personal identifying
information was proper under Exemption 6 “to protect [those
associated with mifepristone] from the injury and embarrassment
that can result from the unnecessary disclosure of personal
information.” 449 F.3d at 153 (citation omitted).
24
Here, the VA relies on the averments of one of its
declarants to explain that “the release of these individuals’
names, locations, or offices make them vulnerable to ‘potential
attack, harassment or threatening behavior,’ and the release of
such personal details are ‘inextricably linked to those
individuals’ expectations of working in a safe environment.’”
Def.’s Reply, ECF No. 16 at 4 (quoting Fuemmeler Decl., ECF No.
10-5 at 3 ¶ 12). The controversy over the experiments at McGuire
VAMC have captured widespread public attention and generated
media coverage. Pl.’s SOMF, ECF No. 13-2 at 12 ¶ 32. WCW has
publicly criticized the experiments at McGuire VAMC, and “WCW
asked its supporters on Facebook to call the phone number for
the McGuire VAMC’s Public Affairs Officer ‘and politely say you
do not want your tax dollars funding dog abuse.’” Id. at 15 ¶ 51
(quoting Goodman Decl., ECF No. 13-3 at 14 ¶ 31). Consistent
with this Court’s finding in WCW I that the principal
investigator’s name fell within Exemption 6’s “similar files”
category, 404 F. Supp. 3d at 100, the VA clears the first hurdle
in this case because Exemption 6 protects “bits of personal
information, such as names,” Judicial Watch, Inc. v. FDA, 449
F.3d at 152 (emphasis added).
2. The Competing Interests
“[T]he mere fact that an agency file or record contains
personal, identifying information is not enough to invoke
25
Exemption 6—the information must also be ‘of such a nature that
its disclosure would constitute a clearly unwarranted privacy
invasion.’” Judicial Watch, Inc. v. U.S. Dep’t of State, 282 F.
Supp. 3d 36, 49–50 (D.D.C. 2017) (quoting Nat’l Ass’n of Home
Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002)). “This, in
turn, requires a two-part analysis.” WCW I, 404 F. Supp. 3d at
102 (quoting Sai v. Transp. Sec. Admin., 315 F. Supp. 3d 218,
259 (D.D.C. 2018)). First, the Court must “determine whether
disclosure of the files would compromise a substantial, as
opposed to de minimis, privacy interest, because [i]f no
significant privacy interest is implicated . . . FOIA demands
disclosure.” Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d
1224, 1229 (D.C. Cir. 2008) (citation and internal quotation
marks omitted); see also Prison Legal News, 787 F.3d at 1147
(“The government bears the burden of showing that a substantial
invasion of privacy will occur if the documents are released.”).
If the agency demonstrates that “a substantial privacy interest
is at stake, then [the Court] must balance the privacy interest
in non-disclosure against the public interest.” Consumers’
Checkbook Ctr. for the Study of Servs. v. U.S. Dep’t of Health &
Human Servs., 554 F.3d 1046, 1050 (D.C. Cir. 2009). “In
undertaking this analysis, the [C]ourt is guided by the
instruction that, ‘under Exemption 6, the presumption in favor
of disclosure is as strong as can be found anywhere in the
26
Act.’” Norton, 309 F.3d at 32 (quoting Wash. Post Co. v. United
States Dep’t of Health and Human Servs., 690 F.2d 252, 261 (D.C.
Cir. 1982)).
a. Privacy Interests
“Substantial, in this context, means less than it might
seem. A substantial privacy interest is anything greater than a
de minimis privacy interest.” WCW I, 404 F. Supp. 3d at 102
(quoting Humane Soc’y of United States v. Animal & Plant Health
Inspection Serv., 386 F. Supp. 3d 34, 43 (D.D.C. 2019)). The
parties disagree about whether there are substantial privacy
interests at stake. See Def.’s Mem., ECF No. 10-1 at 8 (“[T]here
can be no question that viable privacy interests are at
stake.”); see also Pl.’s Mem., ECF No. 13-1 at 27 (“[T]he
principal investigators have no substantial privacy interest in
the names.”). Claiming that “[t]here have been numerous and
recent threatening incidents targeting VA research labs at
[McGuire] VAMC,” Def.’s Mem., ECF No. 10-1 at 8, the VA argues
that there are substantial privacy interests here, id. at 11.
WCW does not dispute the existence of a privacy interest in the
names of the principal investigators, but WCW contends that the
interest “is, at most, de minim[i]s.” Pl.’s Mem., ECF No. 13-1
at 31.
To support its contention that disclosure of the names will
subject the principal investigators to annoyance and harassment,
27
see Def.’s Mem., ECF No. 10-1 at 10, the VA relies on a
declaration from the VA’s Chief Veterinary Medical Officer whose
office is located in Atlanta, Georgia, and who is “responsible
for VA animal research policy, including such activities at
[McGuire VAMC],” Fallon Decl., ECF No. 10-4 at 1 ¶ 1. 8 The VA
also relies on a Microsoft PowerPoint Presentation, entitled
“Threats to Individuals,” with twenty slides that contain a mix
of text, images, and hyperlinks. Def.’s Ex. 5, ECF No. 11 at 1.
The text in the PowerPoint presentation tracks the language in
the Fallon declaration. Compare id. at 1-20, with Fallon Decl.,
ECF No. 10-4 at 2 ¶¶ 4-10, 3 ¶¶ 11-15.
The VA’s declarant—Dr. Michael Fallon (“Dr. Fallon”)—
provides certain examples of incidents at McGuire VAMC and
Milwaukee VAMC, as well as threats received by researchers with
no apparent connections to the VA. See Fallon Decl., ECF No. 10-
4 at 2 ¶¶ 4-10, 3 ¶¶ 11-15. According to the declarant, in June
2017, a VA operator received a threat that there was a bomb on
the third floor, where no animal research is conducted. Id. at 2
¶ 4; see also Def.’s Ex. 5, ECF No. 11 at 13. The declarant
8 The VA cites to the “Declaration of Sarah B. Kotler” in its
reply brief to support its position that the release of the
names would cause an unwarranted invasion of personal privacy,
Def.’s Reply, ECF No. 16 at 8, but WCW correctly points out that
the VA did not file that declaration in this case, Pl.’s Reply,
ECF No. 17 at 15-16. The record does include a declaration from
Sarah B. Kotler. See Docket for Civ. Action No. 17-1155.
28
avers that WCW has circulated photographs of dogs at the
research facility that were illegally obtained by a VA employee
in May 2017. Fallon Decl., ECF No. 10-4 at 2 ¶ 5 (stating that
the VA employee released the photographs and blueprints of the
facility to a news outlet); see also Def.’s Ex. 5, ECF No. 11 at
10. And the declarant states that the facility received
thousands of telephone calls opposing the canine research after
WCW posted the McGuire VAMC’s Public Affairs Officer telephone
number on WCW’s Facebook page. Fallon Decl., ECF No. 10-4 at 2
¶¶ 6-7. According to the declarant, an animal advocacy group
organized protests outside of McGuire VAMC in September and
October 2017, which prompted increased security measures. Id. at
2 ¶ 8.
The declarant avers that “Dr. Tan received threats from the
Daily Caller comments section” following the public release of
his name by NIH in December 2016. Id. at 2 ¶ 10. On a slide in
the PowerPoint presentation, the highlighted text in an image of
a comment provides: “OMG -This ‘TAN’ is a madman and needs to be
put down himself . . . ALSO dogs should NOT be used in
experiments. The VA makes me angrier by the day[.]” Def.’s Ex.
5, ECF No. 11 at 3. According to the declarant, WCW’s Facebook
page includes stories about the research at McGuire VAMC, and
the page contained “several threatening comments” in September
2017. Fallon Decl., ECF No. 10-4 at 3 ¶ 14.
29
WCW argues—and the Court agrees—that the Fallon declaration
and the PowerPoint presentation raise various evidentiary issues
that are left unaddressed by the VA. E.g., Pl.’s Mem., ECF No.
13-1 at 35-38; Pl.’s Objs. to Fallon Decl., ECF No. 14 at 1-9. 9
WCW correctly points out that “[n]early every statement in the
Fallon declaration fails [the] standard” under Rule 56(c)(4),
Pl.’s Mem., ECF No. 13-1 at 36. “A principal command of Rule
56[(c)(4)] is straightforward: ‘Supporting and opposing
affidavits’ on summary-judgment motions ‘shall be made on
personal knowledge, shall set forth facts as would be admissible
in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein.’” Londrigan
v. FBI, 670 F.2d 1164, 1174 (D.C. Cir. 1981) (footnote omitted);
see also Fed. R. Civ. P. 56(c)(4). And “[a]lthough the rule’s
directive with respect to the admissibility of an affidavit’s
contents on summary judgment has been liberally construed, its
requirement of personal knowledge by the affiant is unequivocal,
and cannot be circumvented.” Londrigan, 670 F.2d at 1174
(footnotes omitted).
9 WCW objects to the averments in the Fallon declaration under
Federal Rules of Evidence 401, 403, 602, 701, 802, and 1002.
Pl.’s Objs. to Fallon Decl., ECF No. 14 at 1-8. WCW also objects
to the PowerPoint presentation under Federal Rules of Evidence
602, 802, and 901. Id. at 9. The VA offers no response to WCW’s
objections or evidentiary arguments. See Def.’s Reply, ECF No.
16 at 1-12.
30
Here, Dr. Fallon attests that his “statements . . . in
[the] declaration are made on the basis of [his] personal
knowledge of the following incidents and upon [his] review of
information available to [him] in [his] official capacity.”
Fallon Decl., ECF No. 10-4 at 1 ¶ 2. The VA argues that “the
Fallon Declaration details a series of threatening incidents in
recent history where [WCW], the media, and other advocacy groups
used personally identifiable and private information to target
[the VA’s] labs at [McGuire] VAMC [and] other researchers across
the country.” Def.’s Reply, ECF No. 16 at 5. But WCW contends—
and the Court agrees—that Dr. Fallon testifies about incidents
without explaining the basis for his personal knowledge. Pl.’s
Mem., ECF No. 13-1 at 36. According to WCW, “[i]t is unclear on
what basis [Dr.] Fallon knows of the nature, content, or volume
of calls placed to various unnamed people at the [McGuire VAMC]
facility or the protest outside of it” because Dr. Fallon avers
that he works in Atlanta, Georgia. Id. WCW argues—and the Court
agrees—that Dr. Fallon fails to establish the basis for any
personal knowledge of the incidents at McGuire VAMC and
Milwaukee VAMC, as well as the incidents involving the
researchers with no connections to the VA. Id.
Although “FOIA declarants may include statements in their
declarations based on information they have obtained in the
course of their official duties,” Barnard v. Dep’t of Homeland
31
Sec., 598 F. Supp. 2d 1, 19 (D.D.C. 2009), “it is a different
matter to rely on out-of-court statements from private third
parties to justify an agency’s withholding,” Humane Soc’y of
United States, 386 F. Supp. 3d at 44. The Fallon declaration and
the PowerPoint presentation include statements and information
based on third-party websites and second-hand accounts to
justify the redactions to the principal investigators’ names.
See, e.g., Fallon Decl., ECF No. 10-4 at 2 ¶¶ 5-6, 2 ¶¶ 9-10, 3
¶¶ 11-12, 3 ¶¶ 14-15; Def.’s Ex. 5, ECF No. 11 at 2-8, 10. The
VA did not submit a single declaration from a principal
investigator or researcher at McGuire VAMC with first-hand
knowledge of the alleged incidents. See generally Def.’s Mem.,
ECF No. 10-1. “[T]he second-hand, unsubstantiated accounts in
the [Fallon] declaration are inadmissible hearsay.” Humane Soc’y
of United States, 386 F. Supp. 3d at 44.
The Court cannot rely on the statements and information in
the Fallon declaration and PowerPoint presentation that the VA
has neither confirmed nor verified. See WCW I, 404 F. Supp. 3d
at 105-06 (citing Humane Soc’y of United States, 386 F. Supp. 3d
at 45). As WCW correctly points out, “[Dr.] Fallon makes no
attempt to authenticate [the slides in the PowerPoint
presentation] or even make mention of the slides in his
declaration.” Pl.’s Mem., ECF No. 13-1 at 37. The PowerPoint
presentation itself lacks critical information, such as the
32
author and the date of creation. Id.; see also Def.’s Ex. 5, ECF
No. 11 at 1-20. “Without the accounts of harassment from the
[principal investigators and researchers], the declaration’s
justification for withholding the [principal investigators’
names] is reduced to speculation and summary accounts of the
hearsay.” Humane Soc’y of United States, 386 F. Supp. 3d at 45.
In holding that an agency “fairly asserted abortion-related
violence as a privacy interest for both the names and addresses
of persons and businesses associated with mifepristone,” the
D.C. Circuit relied on: (1) “supporting affidavits detail[ing]
evidence of abortion clinic bombings”; and (2) descriptions of
“websites that encourage[d] readers to look for mifepristone’s
manufacturing locations and then kill or kidnap employees once
found.” Judicial Watch, Inc. v. FDA, 449 F.3d at 153. In this
case, however, the VA has failed to provide declarations or
affidavits from the principal investigators and other research
personnel attesting to the alleged harassment, annoyance, and
embarrassment to support the VA’s invocation of Exemption 6. See
Humane Soc’y of United States, 386 F. Supp. 3d at 45 (finding
that the agency’s declaration to support its withholding of the
requested information was “reduced to speculation and summary
accounts of the hearsay” in the absence of first-hand accounts
from the employees who were allegedly subjected to harassment).
The Court therefore finds that the VA has failed to demonstrate
33
that there are substantial privacy interests in the principal
investigators’ names. 10
Nonetheless, the D.C. Circuit has instructed that the issue
of whether disclosure would compromise a substantial, as opposed
to a de minimis, privacy interest “is not very demanding.” Multi
Ag Media LLC, 515 F.3d at 1230. The D.C. Circuit has balanced
the privacy interest against the public interest even where an
agency, as here, “established only the speculative potential of
a privacy invasion without any degree of likelihood.” Norton,
309 F.3d at 37. Given that the “standard at this stage is not
very demanding,” the D.C. Circuit explained that it was “willing
to engage in the balancing inquiry by concluding that disclosure
of the information would constitute a ‘more than minimal
invasion[] of personal privacy.’” Multi Ag Media LLC, 515 F.3d
at 1230 (quoting Norton, 309 F.3d at 35).
b. The Public Interest in Disclosure
Outweighs the Asserted Privacy
Interests
“[T]he only relevant ‘public interest in disclosure’ to be
10Having found that the VA has failed to carry its burden of
demonstrating substantial privacy interests in the principal
investigators’ names to justify the non-disclosure under
Exemption 6, the Court need not reach WCW’s other arguments—that
federal researchers do not have privacy interests because:
(1) the names are made available to the public under 5 C.F.R.
§ 293.311; (2) the VA’s website lists the principal
investigators; and (3) academic journals and publications
contain the names of the principal investigators. See Pl.’s
Mem., ECF No. 13-1 at 27-31.
34
weighed in this balance is the extent to which disclosure would
serve the ‘core purpose of the FOIA,’ which is ‘contribut[ing]
significantly to public understanding of the operations or
activities of the government.’” U.S. Dep’t of Def. v. Fed. Labor
Relations Auth., 510 U.S. 487, 487 (1994) (quoting DOJ v.
Reporters Comm. For Freedom of Press, 489 U.S. 749, 775 (1989)).
“In other words, disclosure of government records under FOIA is
meant to help the public stay informed about ‘what their
government is up to.’” Am. Immigration Lawyers Ass’n v. Exec.
Office for Immigration Review (“AILA”), 830 F.3d 667, 674 (D.C.
Cir. 2016) (quoting Reporters Comm., 489 U.S. at 773).
Given FOIA’s strong presumption in favor of disclosure, the
public interest in disclosure militates strongly in favor of
disclosure of the names of the principal investigators in this
case. WCW argues—and the Court agrees—that the disclosure of
“the principal investigators’ names would help hold individual
investigators and the VA accountable for their conduct,
encourage the investigators’ compliance with the animal research
protocols, and allow the public and WCW [to] evaluate the [VA’s]
compliance and responses to the public and Congressional concern
surrounding the facility’s dog experiments.” Pl.’s Mem., ECF No.
13-1 at 31. The VA, however, fails to acknowledge the public
interest in the release of the names of the principal
investigators, arguing that “the disclosure of the identities
35
and personal information” of the principal investigators “is
simply not relevant to the public’s understanding of how [the]
VA conducts its business.” Def.’s Mem., ECF No. 10-1 at 10-11.
Contrary to the VA’s assertion that there is no public
interest here, see id., the experiments at McGuire VAMC have
garnered extensive media coverage about the canine research,
see, e.g., Pl.’s SOMF, ECF No. 13-2 at 12 ¶ 32 (“More than fifty
new stories have been published detailing the controversy over
McGuire VAMC’s dog experiments.”); Pl.’s Mem., ECF No. 13-1 at
32 (“The Richmond-area ABC affiliate WRIC, for one example,
aired more than 25 segments related to the McGuire VAMC dog
experiments in the past eight months.”). It is undisputed that
federal and state lawmakers have demanded accountability and
transparency in government-funded animal experimentation. Pl.’s
SOMF, ECF No. 13-2 at 11-12 ¶¶ 28-31. The PUPPERS Act of 2017
was introduced in Congress to prohibit the VA’s research from
causing significant pain or distress to dogs. See id. at 11 ¶
29. And Congress unanimously passed an amendment to defund the
VA’s dog experiments in fiscal year 2018. Id. at 11 ¶ 30.
Furthermore, an incident report revealed that one of the
researchers conducting a McGuire VAMC dog experiment “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., Ex. A, ECF No. 13-3 at 24). The VA does not
36
dispute the information contained in the incident report. See
id.; see also Def.’s Reply, ECF No. 16 at 1-12. Neither does the
VA challenge that “the McGuire VAMC IACUC warned the facility
that future AWA violations could result in suspension or
terminations of [Dr.] Tan’s animal protocol.” Pl.’s SOMF, ECF
No. 13-2 at 10 ¶ 21; see also Def.’s Reply, ECF No. 16 at 1-12.
The Court concludes that information about the experiments
and the principal investigators’ compliance and non-compliance
with the animal research protocols and applicable federal
regulations clearly fall under the ambit of information that
“let[s] citizens know ‘what their government is up to.’”
Lepelletier, 164 F.3d at 46 (citation omitted). And disclosure
of the names of the principal investigators will ensure that the
“public stay[s] informed about ‘what their government is up
to.’” AILA, 830 F.3d at 674 (citation omitted). On balance, the
public interest outweighs the asserted privacy interests of the
principal investigators. The Court therefore finds that the
release of the names would not “constitute a clearly unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(6).
Accordingly, the Court DENIES the VA’s motion for summary
judgment, and GRANTS WCW’s cross-motion for summary judgment as
to Exemption 6. 11
11Because WCW is entitled to summary judgment as to Exemption 6,
the Court FINDS AS MOOT WCW’s requests for in camera review and
37
C. The VA Properly Withheld the Title of ACORP # 02235
Under Exemption 3
Finally, WCW challenges the VA’s invocation of Exemption 3
to redact the title of ACORP # 02235. Pl.’s Mem., ECF No. 13-1
at 51. A “statute fits within Exemption 3 if . . . it either
‘(i) requires that . . . matters be withheld from the public in
such a manner as to leave no discretion on the issue’ or
‘(ii) establishes particular criteria for withholding or refers
to particular types of matters to be withheld.’” Labow v. DOJ,
831 F.3d 523, 527 (D.C. Cir. 2016) (quoting 5 U.S.C. §
552(b)(3)(A)(i)–(ii)). Here, the VA invokes two withholding
statutes pursuant to Exemption 3: (1) 35 U.S.C. § 205, which
protects confidential information related to patents; and
(2) 15 U.S.C. § 3710a, which protects confidential information
within cooperative research and development agreements. E.g.,
Def.’s Mem., ECF No. 10-1 at 13; Def.’s Reply, ECF No. 16 at 11.
The Court analyzes, in turn, both statutes.
Section 205 provides:
Federal agencies are authorized to withhold
from disclosure to the public information
disclosing any invention in which the Federal
Government owns or may own a right, title, or
interest (including a nonexclusive license)
for a reasonable time in order for a patent
application to be filed. Furthermore, Federal
the production of the first page of each protocol at issue with
the principal investigators’ names to determine whether the
identities of the principal investigators are in the public
domain. See Pl.’s Mem., ECF No. 13-1 at 45-46.
38
agencies shall not be required to release
copies of any document which is part of an
application for patent filed with the United
States Patent and Trademark Office or with any
foreign patent office.
35 U.S.C. § 205. The parties agree that 35 U.S.C. § 205 is a
qualifying statute under Exemption 3. See, e.g., Def.’s Mem.,
ECF No. 10-1 at 13; Pl.’s Mem., ECF No. 13-1 at 51. According to
the VA, “ACORP # 02235 contains information that is confidential
and privileged, trade secret information, as well as information
that is pending patent.” Def.’s Mem., ECF No. 10-1 at 13.
WCW attacks the VA’s reliance on 35 U.S.C. § 205 to
withhold the title of ACORP # 02235 on two grounds: (1) “[t]he
title of a protocol is not the type of information that . . .
would ‘disclose the invention’ under section 205, especially as
compared to all of the material about the process and research
itself that is left unredacted in ACROP # 02235,” Pl.’s Mem.,
ECF No. 13-1 at 51-52; and (2) the VA “asserts that the patent
is already pending” and “[b]ecause the patent application, by
the agency’s own account, has already been filed, section 205
does not protect the information,” id. at 52.
Without addressing WCW’s arguments, see Def.’s Reply, ECF
No. 16 at 11, the VA relies on the Fuemmeler declaration, which
states, in general terms, that “ACROP # 02235 contains
information that is confidential and privileged, trade secret
information, as well as information that is pending patent.”
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Fuemmeler Decl., ECF No. 10-5 at 4 ¶ 14. The VA contends that
the agency “properly exercised its discretion to withhold the
protocol title of ACROP # 02235.” Def.’s Reply, ECF No. 16 at
11. The VA, however, falls short of providing a “relatively
detailed justification, specifically identifying the reasons
why” Exemption 3 applies to the information purportedly covered
under Section 205. Mead Data Cent., Inc. v. Dep’t of the Air
Force, 566 F.2d 242, 251 (D.C. Cir. 1977).
WCW correctly points out that “the text of 35 U.S.C. § 205
makes clear that it protects information ‘for a reasonable time
in order for a patent application to be filed,’” but the VA does
not deny that “it has already filed its patent application.”
Pl.’s Reply, ECF No. 17 at 20; see also Def.’s Reply, ECF No. 16
at 10-11. Section 205 covers information prior to the filing of
a patent application for a reasonable time, 35 U.S.C. § 205, but
the patent has already been filed because the VA’s declarant
avers that the patent is pending. Fuemmeler Decl., ECF No. 10-5
at 4 ¶ 14. The VA fails to demonstrate that Section 205 applies
to the title of ACROP # 02235. See Def.’s Reply, ECF No. 16 at
10-11. The Court therefore finds that the VA has not met its
burden of demonstrating that the title of ACROP # 02235 is
exempt from disclosure under 35 U.S.C. § 205.
Having found that the VA failed to demonstrate that the
information in the title of ACROP # 02235 is protected under
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Section 205, the Court turns to the VA’s invocation of the FTTA.
The FTTA provides:
No trade secrets or commercial or financial
information that is privileged or
confidential, under the meaning of section
552(b)(4) of Title 5, which is obtained in the
conduct of research or as a result of
activities under this chapter from a non-
Federal party participating in a cooperative
research and development agreement shall be
disclosed.
15 U.S.C. § 3710a(c)(7)(A).
In this case, WCW does not dispute that the FTTA satisfies
the withholding criteria under Exemption 3. See Pl.’s Mem., ECF
No. 13-1 at 52; see also Pl.’s Reply, ECF No. 17 at 20. But WCW
argues that the VA waived any arguments based on the FTTA
because the VA did not raise that statute in its opening brief.
See Pl.’s Mem., ECF No. 13-1 at 52; see also Pl.’s Reply, ECF
No. 17 at 20. Although WCW is correct that the VA raised the
FTTA for the first time in its reply brief as a basis for
withholding the title of ACROP # 02235, the VA asserted the FTTA
to withhold information in the Fuemmeler declaration and the
Vaughn index, see, e.g., Fuemmeler Decl., ECF No. 10-5 at 4-5 ¶
14; Def.’s Ex. 1, ECF No. 10-3 at 4. The Court finds that the VA
did not waive any arguments based on the FTTA because WCW had an
opportunity to respond to the VA’s arguments in its reply brief.
See Rosenberg v. United States Dep’t of Immigration & Customs
Enf’t, 13 F. Supp. 3d 92, 115-116 (D.D.C. 2014) (finding that
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the agency’s late invocation of Exemption 3 in its reply brief
did not waive raising the exemption where the FOIA requester had
an opportunity to respond in its opposition brief to the
agency’s motion for reconsideration).
Apart from its waiver argument, WCW has adduced no argument
as to the applicability of the FTTA under Exemption 3. See Pl.’s
Mem., ECF No. 13-1 at 52; see also Pl.’s Reply, ECF No. 17 at
20. “[T]he Court still has an independent duty to ‘determine for
itself whether the record and any undisputed material facts
justify granting summary judgment,’ because a Court may not
grant summary judgment simply because the withholding [under a
particular exemption] was not challenged.” Tokar v. DOJ, 304 F.
Supp. 3d 81, 94 n.3 (D.D.C. 2018) (quoting Winston & Strawn, LLP
v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016)).
The VA argues—and the Court agrees—that Section
3710a(c)(7)(A) gives the agency “no discretion to release any
commercial and confidential information obtained from the
[cooperative research and development agreement’s] private
sector partner.” Def.’s Reply, ECF No. 16 at 11. According to
the VA’s declarant, “[t]here is a cooperative research and
development agreement . . . in place for [ACROP # 02235].”
Fuemmeler Decl., ECF No. 10-5 at 5 ¶ 14. And the VA’s declarant
avers that “release of [the title of ACROP # 02235] would reveal
a new and innovative process to treating a disease.” Id. Such
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information cannot be disclosed under the FTTA. See 15 U.S.C.
§ 3710a(c)(7)(A). The VA’s declaration supports its invocation
of the FTTA as the exempting statute to withhold the title of
the ACROP # 02235. The Court therefore finds that the VA
appropriately redacted the information at issue pursuant to
Exemption 3. Accordingly, the Court GRANTS the VA’s motion for
summary judgment, and DENIES WCW’s cross-motion for summary
judgment as to Exemption 3.
V. Conclusion
For the reasons set forth above, 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. A separate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
March 10, 2020
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