Center for Medical Progress v. U.S. Department of Health and Human Services ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CENTER FOR MEDICAL PROGRESS,
Plaintiff,
Civil Action No. 21-642 (BAH)
v.
Judge Beryl A. Howell
U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendant.
MEMORANDUM OPINION
This is the second go-round in summary judgment briefing in this lawsuit, as plaintiff
Center for Medical Progress, a nonprofit investigative journalism organization, continues its
effort to obtain, through a record request pursuant to the Freedom of Information Act (“FOIA”),
5 U.S.C. § 552, a grant application submitted by the University of Pittsburgh to serve as a
GenitoUrinary Development Molecular Anatomy Project (“GUDMAP”) Tissue Hub and Tissue
Gathering site for the National Institutes of Health’s (“NIH”) subcomponent, the National
Institute of Diabetes and Digestive and Kidney Diseases (“NIDDK”). See Compl. ¶ 5, ECF No.
1; see also Ctr. for Med. Progress v. U.S. Dep’t of Health & Hum. Servs. (“Ctr. for Medical
Progress I”), No. 21-cv-642 (BAH), 2022 WL 4016617 (D.D.C. Sept. 3, 2022) (granting, in part,
and denying, in part, parties’ cross-motions for summary judgment). Still contested is the
withholding by defendant U.S. Department of Health and Human Services, under FOIA
Exemption 6, 5 U.S.C. § 552(b)(6), of the names of two NIH employees involved with the grant,
which plaintiff alleges provides controversial funding for the collection and distribution of fetal
stem cell tissue, see Decl. of Meredith Di Liberto, Pl.’s Counsel, ¶¶ 14–15, Exs. 9–10, ECF Nos.
18-1, 18-10, 18-11. The parties have thus renewed their cross-motions for summary judgment,
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with supplemental evidentiary support for their respective positions. See Pl.’s Mem. Supp. Mot.
Summ. J. (“Pl.’s Mem.”), ECF No. 35; Def.’s Opp’n Supp. Opp’n Pl.’s Mot. Summ. J. & Cross-
Mot. Summ. J. (“Def.’s Opp’n”), ECF No. 44. For the reasons explained below, plaintiff’s
pending motion for summary judgment is denied and defendant’s pending cross-motion for
summary judgment is granted.
I. BACKGROUND
The factual background and procedural history relevant to the pending motions have been
described at length in this Court’s prior Memorandum Opinion resolving the parties’ initial
cross-motions for summary judgment, see Ctr. for Med. Progress I, 2022 WL 4016617, at *1–3,
and thus are incorporated by reference here. Briefly, this dispute began with plaintiff’s FOIA
request, submitted on April 28, 2020, requesting access to the grant application of the University
of Pittsburgh submitted to NIH to serve as the GUDMAP Tissue Hub and Tissue Gathering site.
See id. at *1. As production was ongoing, the parties cross-moved for summary judgment
regarding whether defendant’s reliance on FOIA Exemptions 4 and 6 were properly invoked.
See id. at *2–3.
Summary judgment was subsequently granted to defendant as to its withholding of six
categories of records under Exemption 4 and six categories of records under Exemption 6, see id.
at *12, but summary judgment was denied to both parties, without prejudice, as to two aspects of
the withheld records: (1) various categories of information withheld under Exemption 4 “due to
insufficient information to determine whether the parties dispute that such categories contain
confidential commercial information”; and (2) “the category of withheld information under
Exemption 6 detailed as ‘names of NIH staff involved in administering the grant’ . . . due to
insufficient information to determine whether the asserted privacy interests outweigh the public
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interest in this information[,]” id. at *18. The parties were then directed to meet and confer
regarding the records remaining at issue and propose further proceedings to resolve any lingering
disputes as to the remaining records. See id. Upon conferral, the parties proposed a schedule for
subsequent dispositive motions to resolve the remaining disputes, which request was granted.
See Min. Order (Sept. 17, 2022). Approximately two weeks later, plaintiff moved to alter or
amend the September 3, 2022 judgment, see Pl.’s Mot. Alter Amend J., ECF No. 30, challenging
factual assertions about employee harassment and abortion numbers included in defendant’s
Third Declaration of Gorka Garcia-Malene (“Third NIH Decl.”), ECF No. 23-2, referenced in
the Memorandum Opinion. See Ctr. for Med. Progress I, 2022 WL 4016617, at *9, *13. That
motion was denied for the reasons explained in Center for Medical Progress v. U.S. Department
of Health & Human Services, No. 21-cv-642 (BAH), 2022 WL 17976633 (D.D.C. Nov. 16,
2022) (“Ctr. for Med. Progress II”).
Plaintiff then moved for summary judgment on November 14, 2022, seeking to force the
release of the remaining responsive records falling into three categories of information withheld
under FOIA Exemption 4 as well as the release of three remaining redacted names of NIH
employees withheld under FOIA Exemption 6. See Pl.’s Mem. Defendant cross-moved for
summary judgment, reasserting the validity of its Exemption 4 and 6 withholdings. See Def.’s
Opp’n. 1 As this briefing progressed, defendant chose to release two categories of previously
withheld information under Exemption 4, see Def.’s Opp’n at 21; Pl.’s Mem. Opp’n Def.’s
Cross-Mot. Summ. J. & Reply Supp. Pl.’s Mot. Summ. J. (“Pl.’s Opp’n”) at 9 n.13, ECF No. 47,
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Defendant filed its cross-motion and opposition twice on the docket, the only difference being that the
latter-filed version includes a Proposed Order and defendant’s Response to Plaintiff’s Statement of Undisputed
Material Facts. Compare ECF No. 43 (including solely defendant’s 21-page Memorandum of Law in Support of
Defendant’s Combined (1) Opposition to Plaintiff’s Motion for Summary Judgment and (2) Cross-Motion for
Summary Judgment), with ECF No. 44 (including the identical 21-page Memorandum of Law as well as the two-
page Proposed Order and the two-page Response to Plaintiff’s Statement of Undisputed Material Facts). As such,
the more complete filing, ECF No. 44, is considered the operative filing for the purposes of this opinion.
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as well as “lifted challenged redactions” also withheld under Exemption 4, rendering moot
plaintiff’s challenges under this exemption, see Def.’s Reply Supp. Def.’s Cross-Mot. Summ. J.
(“Def.’s Reply”) at 2; accord id. at 14–15; see also Sixth Decl. of Gorka Garcia-Malene, FOIA
Officer, NIH, HHS (“Sixth NIH Decl.”) ¶ 4, ECF No. 55-2; id., Ex. 1 (disclosing requested
redactions), ECF No. 55-3. Meanwhile, plaintiff withdrew another challenge because
defendant’s “explanation” of a certain term in the FOIA request revealed that release of one
category of materials protected by FOIA Exemption 6 “will not add anything pertinent to the
public interest aspect of the records.” Pl.’s Opp’n at 4 n.3.
In summary, what remains is plaintiff’s challenge to the Exemption 6 withholdings of
two categories of information: (1) the name of the “NIH Program Official”; and (2) the name of
the “NIH Grants Management Specialist.” The parties’ motions are now ripe for review.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, “[a] party is entitled to summary judgment
only if there is no genuine issue of material fact and judgment in the movant’s favor is proper as
a matter of law.” Soundboard Ass’n v. Fed. Trade Comm’n, 888 F.3d 1261, 1267 (D.C. Cir.
2018) (quoting Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 805
(D.C. Cir. 2006)); see also FED. R. CIV. P. 56(a). In FOIA cases, “courts must grant summary
judgment for an agency if its affidavit: (1) describes the justifications for nondisclosure with
‘reasonably specific detail’; and (2) is not substantially called into question by contrary record
evidence or evidence of agency bad faith.” Schaerr v. U.S. Dep’t of Just., 69 F.4th 924, 929
(D.C. Cir. 2023) (quoting Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)). Most FOIA cases
“can be resolved on summary judgment.” Brayton v. Off. of U.S. Trade Representative, 641 F.3d
521, 527 (D.C. Cir. 2011).
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“The fundamental principle animating FOIA is public access to government
documents.” Waterman v. IRS, 61 F.4th 152, 156 (D.C. Cir. 2023) (quoting Valencia-Lucena v.
U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999)); accord DiBacco v. U.S.
Army (“DiBacco I”), 795 F.3d 178, 183 (D.C. Cir. 2015). Agencies are therefore statutorily
mandated to “make . . . records promptly available to any person” who submits a request that
“reasonably describes such records” and “is made in accordance with [the agency’s] published
rules.” 5 U.S.C. § 552(a)(3)(A). “Congress, however, did not ‘pursue transparency at all
costs[;]’ [r]ather, it recognized that ‘legitimate governmental and private interests could be
harmed by release of certain types of information.’” Citizens for Resp. & Ethics in Washington
v. U.S. Dep’t of Just. (“CREW II”), 45 F.4th 963, 967 (D.C. Cir. 2022) (first quoting Hall &
Assocs. v. EPA, 956 F.3d 621, 624 (D.C. Cir. 2020), then quoting AquAlliance v. U.S. Bureau of
Reclamation, 856 F.3d 101, 102 (D.C. Cir. 2017)). To balance those competing interests, “FOIA
exempts nine categories of documents from ‘the government’s otherwise broad duty of
disclosure.’” Waterman, 61 F.4th at 156 (quoting AquAlliance, 856 F.3d at 103). “[T]hese
limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant
objective of the Act.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976).
FOIA authorizes federal courts “to enjoin the agency from withholding agency records
and to order the production of any agency records improperly withheld from the complainant.” 5
U.S.C. § 552(a)(4)(B). When an agency invokes an exemption to disclosure, district courts must
“determine de novo whether non-disclosure was permissible.” Elec. Priv. Info. Ctr. v. U.S. Dep’t
of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015); see also U.S. Dep’t of Just. v. Landano,
508 U.S. 165, 171 (1993) (“The Government bears the burden of establishing that the exemption
applies.”); DiBacco v. U.S. Dep’t of Army (“DiBacco II”), 926 F.3d 827, 834 (D.C. Cir. 2019)
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(“‘An agency withholding responsive documents from a FOIA release bears the burden of
proving the applicability of claimed exemptions,’ typically through affidavit or declaration.”
(quoting DiBacco I, 795 F.3d at 195)). The statute “places the burden ‘on the agency to sustain
its action,’ and the agency therefore bears the burden of proving that it has not ‘improperly’
withheld the requested records.” Citizens for Resp. & Ethics in Washington v. U.S. Dep’t of
Just. (“CREW I”), 922 F.3d 480, 487 (D.C. Cir. 2019) (first quoting 5 U.S.C. § 552(a)(4)(B),
then quoting U.S. Dep’t of Just. v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989)). This burden
does not shift even when the requester files a cross-motion for summary judgment because the
agency ultimately “bears the burden to establish the applicability of a claimed exemption to any
records or portions of records it seeks to withhold,” Am. Immigr. Laws. Ass’n v. Exec. Off. for
Immigr. Rev., 830 F.3d 667, 673 (D.C. Cir. 2016), while “[t]he burden upon the requester is
merely ‘to establish the absence of material factual issues before a summary disposition of the
case could permissibly occur,’” Pub. Citizen Health Rsch. Grp. v. U.S. Food & Drug Admin.,
185 F.3d 898, 904–05 (D.C. Cir. 1999) (quoting Nat’l Ass’n of Gov’t Emps. v. Campbell, 593
F.2d 1023, 1027 (D.C. Cir. 1978)).
The agency may sustain “this burden ‘by submitting a Vaughn index, along with
affidavits from agency employees that describe the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information withheld logically falls within the
claimed exemption, and are not controverted by either contrary evidence in the record nor by
evidence of agency bad faith.’” Waterman, 61 F.4th at 158 (quoting Am. Immigr. Laws. Ass’n v.
Exec. Off. Immigr. Rev., 830 F.3d 667, 673 (D.C. Cir. 2016)); see also Poitras v. Dep’t of
Homeland Sec., 303 F. Supp. 3d 136, 150 (D.D.C. 2018) (“An agency may carry its burden of
showing an exemption was properly invoked by submitting sufficiently detailed affidavits or
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declarations, a Vaughn index of the withheld documents, or both, to demonstrate that the
government has analyzed carefully any material withheld and provided sufficient information as
to the applicability of an exemption to enable the adversary system to operate.”). “‘Ultimately,
an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or
‘plausible.’” Jud. Watch, Inc. v. U.S. Dep’t of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (per
curiam) (quoting ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)).
III. DISCUSSION
Plaintiff contests the invocation of FOIA Exemption 6 to redact the names of two NIH
employees with the titles “Program Official” and “Grants Management Specialist,” respectively.
See Pl.’s Mem. at 8–9, 10–12. As discussed below, Exemption 6 properly applies to protect
from disclosure the names of the individuals who hold those job titles.
A. Withheld NIH Employees’ Names Qualify for Exemption 6 Nondisclosure
Exemption 6 protects “personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. §
552(b)(6). As a threshold matter, to qualify for this exemption, the withheld information must be
“personnel and medical files” or “similar files.” Id. “The terms [sic] ‘similar files’ is construed
broadly and ‘is intended to cover detailed Government records on an individual which can be
identified as applying to that individual.’” Gov’t Accountability Project v. U.S. Dep’t of State,
699 F. Supp. 2d 97, 105–06 (D.D.C. 2010) (quoting U.S. Dep’t of State v. Wash. Post Co., 456
U.S. 595, 602 (1982)). “[C]ourts look ‘not to the nature of the files,’ but rather to ‘the nature of
the information’ at issue.” Skybridge Spectrum Found. v. FCC, 842 F. Supp. 2d 65, 83 (D.D.C.
2012) (quoting N.Y. Times Co. v. NASA, 920 F.2d 1002, 1006 (D.C. Cir. 1990)); see also Jud.
Watch, Inc. v. FDA, 449 F.3d 141, 152–53 (D.C. Cir. 2006) (“similar files” encompasses “not
just files, but also bits of personal information, such as names and addresses, the release of which
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would ‘create[] a palpable threat to privacy.’” (alteration in original) (quoting Carter v. U.S.
Dep’t of Com., 830 F.2d 388, 391 (D.C. Cir. 1987))).
Correctly, nowhere does plaintiff dispute that the two NIH employee names requested
qualify as “similar file[s].” Cf. Pl.’s Mem. at 10 (stating only that “Exemption 6 exempts from
disclosure information from ‘personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy.’ 5 U.S.C. §
552(b)(6).”). Indeed, the names, job titles, location of tissue procurement sites, and other
identifying information of University of Pittsburgh employees, names and identifying
information of third parties supporting the grant, and names and identifying information of
clients who wrote letters in support of the grant are “bits of personal information,” Jud. Watch,
449 F.3d at 152, that “appl[y] to . . . particular individual[s],” Wash. Post Co., 690 F.2d at 260.
Thus, Exemption 6 may be triggered. See Jud. Watch, 449 F.3d at 152–53 (finding that the
names and addresses of persons and businesses associated with a drug that induced abortion
constituted “similar files”).
Upon meeting this threshold determination, the next inquiry is whether disclosure
“‘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. U.S. Dep’t of Agric., 515 F.3d 1224, 1229 (D.C. Cir. 2008) (alteration and omission in
original) (quoting Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir.
1989)). The standard “means less than it might seem,” as a substantial privacy interest is
“anything greater than a de minimis privacy interest.” Id. at 1229–30. If a substantial privacy
interest is found in the information, courts employ a balancing test to determine whether release
of such information constitutes a clearly unwarranted invasion of personal privacy, Wash. Post
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Co. v. U.S. Dep’t of Health & Human Servs., 690 F.2d 252, 260 (D.C. Cir. 1982); Rose, 425 U.S.
at 372, by weighing “the privacy interest that would be compromised by disclosure against any
public interest in the requested information,” Multi Ag Media LLC, 515 F.3d at 1228. “[A]
privacy interest may be substantial,” yet nonetheless “be insufficient to overcome the public
interest in disclosure.” Id. at 1230. “Exemption 6’s requirement that disclosure be ‘clearly
unwarranted’ instructs us to ‘tilt the balance (of disclosure interests against privacy interests) in
favor of disclosure.’” Morley v. CIA, 508 F.3d 1108, 1127 (D.C. Cir. 2007) (quoting Wash. Post
Co., 690 F.2d at 261).
Accordingly, the appropriateness of applying Exemption 6 to withhold the names of the
two NIH employees turns on whether the requested information implicates a substantial privacy
interest and, if so, whether release of the information would be “clearly unwarranted” in view of
the public interest, if any, in the requested documents. This analysis applies to each of the two
NIH employees, whose information is being withheld, and is addressed next.
B. “NIH Program Official”
Plaintiff argues that Exemption 6 does not apply to the name of the “NIH Program
Official” for two reasons, namely: (1) the name is already publicly available either on the NIH
website, see Pl.’s Mem. at 8–9, or on the website www.grantome.com, see Pl.’s Opp’n at 4–5,
and (2) defendant has “completely failed to provide any evidence that fetal tissue researchers at
Pittsburgh were ever harassed” and thus made an insufficient showing of risks to the “Program
Official,” see id. at 5–6. Both arguments are addressed in turn.
First, plaintiff claims that NIH already has made the withheld name publicly available,
along with the names of other individuals associated with fetal tissue research more generally.
As support, plaintiff says the withheld name is listed on NIH’s own RePORTER website
associated with the relevant grant application as “Anna Burkart Sadusky,” who is listed as
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“Program Officer,” see Pl.’s Mem. at 8, and also offers up another name “Deborah K.
Hoshizaki,” listed as the “Program Official” on the publicly available website
www.grantome.com to justify lifting the redactions, see Pl.’s Opp’n at 4–5. Plaintiff requests in
camera review for confirmation. See Pl.’s Mem. at 8–9. Defendant counters that the name of
the “Program Official” has not been publicly released. See Fifth Decl. of Gorka Garcia-Malene,
FOIA Officer, NIH, HHS (“Fifth NIH Decl.”) ¶ 7, ECF No. 44-1; Sixth NIH Decl. ¶ 7; see also
Def.’s Opp’n at 2–4 (stating that Sadusky is not the redacted name plaintiff requests); Def.’s
Reply at 9 (“Plaintiff has no way of confirming the accuracy of the listing on Grantome.com
[naming “Deborah K. Hoshizaki” as the “Program Official”] . . . . For that reason, the
Government will neither confirm nor deny whether the listed name is correctly attributed to the
listed role.”). Moreover, defendant contends that any inconsistencies, missteps, or concessions
made in the redaction process have already been deemed by this Court not to amount to bad
faith, see id. at 3–4 (quoting Ctr. for Med. Progress I, 2022 WL 4016617, at *17–18), and, in any
event, the fact that other individuals associated with fetal tissue procurement and research are
publicly identified does not support the release of additional names solely on that basis, see
Def.’s Reply at 7–11. 2 Defendant is correct.
As previously explained, the fact that the names of some individuals tied to the grant
program are public does not justify disclosing more names simply on that basis. See Ctr. for
Med. Progress I, 2022 WL 4016617, at *14 (describing Judicial Watch: “where the D.C. Circuit
2
Despite this prior rejection of plaintiff’s urging to make a finding of bad faith, plaintiff persists in seeking
such a finding. Again, any inconsistencies throughout the records in the naming of the “Program Official” are not
evidence of bad faith. See Ctr. for Med. Progress I, 2022 WL 4016617, at *17 (citing Mobley v. CIA, 924 F. Supp.
2d 24,63 (D.D.C. 2013)). Despite the varying uses of “Program Official” and “Program Officer,” defendant
throughout this litigation has been forthcoming about the need to protect certain information, and has made
corrections to the Vaughn index as well as subsequent disclosures upon uncovering new information. See also Ctr.
for Med. Progress I, 2022 WL 4016617, at *17 (describing those same efforts). That conduct supports defendant’s
good faith efforts to comply with FOIA’s requirements.
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held that once an agency established the potential for violence and harassment for persons or
businesses associated with the product at issue, such ‘privacy interest extends to all such
employees, and the [agency] need not justify the withholding of [names] on an individual-by-
individual basis under FOIA Exemption 6’”) (citing Jud. Watch, Inc. v. FDA, 449 F.3d 141, 153
(D.C. Cir. 2006)).
Furthermore, any named individuals on the public website www.grantome.com
supposedly linked to the grant program do not support disclosure. As the D.C. Circuit outlined
in Cottone v. Reno, “materials normally immunized from disclosure under FOIA lose their
protective cloak once disclosed and preserved in a permanent public record.” 193 F.3d 550, 554
(D.C. Cir. 1999). Known as the “public domain doctrine,” requested information is deemed
“officially acknowledged” and thus publicly disclosed if the information is (1) “as specific as the
information previously released[,]” (2) “match[es] the information previously disclosed[,]” and
(3) “already ha[s] been made public through an official and documented disclosure[.]”
Montgomery v. IRS, 40 F.4th 702, 710 (D.C. Cir. 2022) (quoting Fitzgibbon v. CIA, 911 F.2d
755, 765 (D.C. Cir. 1990)).
Information cited by plaintiff on www.grantome.com does not fulfill that test because the
website is privately managed and operated—claiming to be run by “data scientists based in
Cleveland, OH USA who are scientifically trained with Ph.D. degrees in quantitative
disciplines”—and claiming to compile grant data available from NIH. See About, Grantome (last
visited July 24, 2023), https://www.grantome.com/about [https://perma.cc/6E3Z-F2HN].
Nowhere on the website does the company purport to be an arm of the government, and plaintiff
does not allege such. See Pl.’s Opp’n at 4–5; see also Sixth NIH Decl. ¶ 7 (“The grantome.com
website is not, in any way, associated with NIH and NIH bears no responsibility for (nor does it
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have any control over) what appears there.”). On that ground alone, plaintiff fails to show that
the public domain doctrine applies and thus discussion of the two additional requirements for
official disclosure is unnecessary.
Second, plaintiff claims a complete lack of factual support for defendant’s contention that
NIH employees affiliated with this grant project are subject to risks of harassment, bolstering this
contention by pointing out that NIH already publicizes the names of individuals connected to the
grant. See id. at 5–6. This Court already held that defendant provided sufficient evidence to
support that releasing the names of individuals tied to the grant program and fetal tissue research,
such as the “Program Official,” would subject those individuals to the real risk of threats,
harassment, and violence. See Ctr. for Med. Progress I, 2022 WL 4016617, at *13 (citing First
Decl. of Gorka Garcia-Malene, FOIA Officer, NIH, HHS (“First NIH Decl.”) ¶ 31, ECF No. 17-
3; Second Decl. of Gorka Garcia-Malene, FOIA Officer, NIH, HHS (“Second NIH Decl.”) ¶ 12,
ECF No. 21-1; Revised Vaughn Index at 59–60, ECF No. 25-1). Such interests are far more than
de minimis. Plaintiff again challenged the sufficiency of defendant’s evidence of harassment in
its Motion to Alter or Amend Judgment, which was similarly rejected, see Ctr. for Med.
Progress II, 2022 WL 17976633, at *2. Plaintiff now seizes a third opportunity to decry a
supposed dearth of evidence of harassment—such an effort to force the Court to revisit its prior
findings based on arguments already rejected twice is both unsuccessful and unacceptable.
Given the lack of official public disclosure of the name of the “Program Official” and the
great privacy interest in protecting that individual’s identity, FOIA Exemption 6 is properly
invoked here and thus defendant’s motion for summary judgment is granted as to the
withholding of that name.
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C. “NIH Grants Management Specialist”
Plaintiff then challenges defendant’s invocation of Exemption 6 to withhold the identity
of the “NIH Grants Management Specialist” arguing that the public interest in ensuring that NIH
and the grant recipient are complying with federal and state laws pertaining to fetal tissue
outweigh that individual’s privacy interest. See Pl.’s Mem. at 10–11. According to plaintiff, the
“NIH Grants Management Specialist” is “in a very important position” with the tasks, among
other things, of “evaluating grant applications for administrative content and compliance with
statutes, regulations, and guidelines,” such that knowing the identity of this person would address
the public concern with statutory compliance. See id. at 11; Pl.’s Opp’n at 6–9. Defendant
counters that the “NIH Grants Management Specialist” is “a staff-level civil servant” without
programmatic responsibilities and “is not involved in the substance of the grant.” Def.’s Opp’n
at 10 (citing Fifth NIH Decl. ¶¶ 5–6). Defendant also flags plaintiff’s lack of evidence, beyond
hearsay reported in news articles, that NIH or the grant recipient are violating any statute in any
way, and that such conclusory allegations do not outweigh the individual’s substantial interest in
privacy to avoid the risk of harassment or threats. See id. at 10–13. Finally, defendant asserts
that any interest of the public in exposing “what their government is up to” would not be solved
by the release of the name of a single individual and thus does not eclipse the privacy interest.
Id. at 11 (quoting Rose, 425 U.S. at 361). Again, defendant is correct.
Plaintiff is free to request information regarding potential government wrongdoing, but
revealing the exact identity of the “NIH Grants Management Specialist” in no way furthers that
aim. See Rose, 425 U.S. at 372 (“[T]he basic purpose of the Freedom of Information Act [is] to
open agency action to the light of public scrutiny.” (internal citation omitted)). Aside from
stating that the “NIH Grant Management Specialist” has an important job, see Pl.’s Mem. at 11;
Pl.’s Opp’n at 6–7, plaintiff’s papers stop short of accusing this person of any individual
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misconduct. Thus, in attempting to unravel a supposed web of government noncompliance, the
relevant material involves the actions of individuals, not their names. Cf. Rose, 425 U.S. at 380–
81 (ruling that the names of U.S. Air Force Academy cadets accused of wrongdoing were
irrelevant to the inquiry into whether the Air Force abided by its Honor Code and thus the names
were not subject to disclosure under FOIA Exemption 6); U.S. Dep’t of Just. v. Reporters Comm.
for Freedom of Press, 489 U.S. 749, 774–75 (1989) (“[A]lthough there is undoubtedly some
public interest in anyone’s criminal history, especially if the history is in some way related to the
subject’s dealing with a public official or agency, the FOIA’s central purpose is to ensure that the
Government’s activities be opened to the sharp eye of public scrutiny[.]”). The extremely
limited public interest in the identity of the “NIH Grant Management Specialist” is far
outweighed by the private interest in protecting this individual from harassment and potential
violence that could result from disclosing their name. As previously discussed, plaintiff
provided sufficient facts to illustrate that threat. See supra Section III.B (citing First NIH Decl. ¶
31; Second NIH Decl. ¶ 12; Revised Vaughn Index at 59–60). Moreover, plaintiff’s second
attempt to assert that prior NIH disclosure of names of individuals connected to fetal tissue
research justifies disclosure of more names that have thus far been protected similarly falls flat.
See supra id. (citing See Ctr. for Med. Progress I, 2022 WL 4016617, at *14; Jud. Watch, Inc.,
449 F.3d at 153).
As such, the private interest in protecting the identity of the “NIH Grants Management
Specialist” outweighs the public interest and thus FOIA Exemption 6 properly withholds that
information from disclosure. Defendant’s motion for summary judgment is granted.
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IV. CONCLUSION
For the foregoing reasons the government’s invocation of FOIA Exemption 6 to withhold
the identities of the “NIH Program Official” and the “NIH Grants Management Specialist” is
proper. Plaintiff’s motion for summary judgment demanding release of that information is
therefore denied and defendant’s cross-motion for summary judgment is granted.
An Order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: August 7, 2023
___________________________
BERYL A. HOWELL
United States District Judge
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