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

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WHITE COAT WASTE PROJECT
Plaintiff,
v.
No. 17-cv-2264 (EGS)
UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS,
Defendant.
MEMORANDUM OPINION
I. Introduction
Plaintiff White Coat Waste Project (“WCW”), a non-profit
organization that monitors federally-funded animal experiments,
brings this Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
against the United States Department of Veterans Affairs (“VA”),
seeking to obtain certain records about canine experiments at
the Louis Stokes Cleveland Veterans Affairs Medical Center
(“Stokes VAMC”) in Ohio. The dog experiments have prompted
speculation and resulted in protests. Stokes VAMC eventually
released responsive documents, invoking certain FOIA exemptions
based on the nature of the animal research and the privacy
interests of its principal investigators and other research
personnel. Following Stokes VAMC’s productions, WCW’s
administrative appeals of certain withholdings, and the filing
of this action, the remaining dispute is quite narrow. WCW
solely seeks the name of the principal investigator on a
research protocol for dog experiments at Stokes VAMC.
Pending before the Court are the parties’ cross-motions for
summary judgment. Upon careful consideration of the parties’
submissions, the applicable law, and the entire record herein,
the Court concludes that FOIA Exemption 5’s deliberative process
privilege does not justify withholding the principal
investigator’s name, and that the Court finds that the VA has
failed to provide it with sufficient information to determine
whether the principal investigator’s name was properly withheld
under Exemption 6. Therefore, the Court GRANTS IN PART and
DENIES IN PART Defendant’s Motion for Summary Judgment and
GRANTS IN PART, DENIES IN PART, and HOLDS IN ABEYANCE
Plaintiff’s Cross-Motion for Summary Judgment. The Court DENIES
WITHOUT PREJUDICE WCW’s requests for in camera review and the
production of the animal research protocol, and DEFERS ruling on
the issue of whether the agency has “officially acknowledged”
the principal investigator’s name.
II. Background
WCW is a non-profit organization with a mission “to expose
and end wasteful taxpayer-funded animal experiments.” Def.’s
Statement of Material Facts (“Def.’s SOMF”), ECF No. 20-1 at 1 ¶
1 (quoting Compl., ECF No. 1 at 2 ¶ 4); see also Pl.’s Counter-
Statement of Material Facts (“Pl.’s SOMF”), ECF No. 21-2 at 1 ¶
2
1 (same). 1 As part of its investigation into the VA’s dog
experiments, WCW submitted a FOIA request to Stokes VAMC on
April 3, 2017, seeking the following records:
(1) A current census of all dogs actively held
and used in the Stokes VAMC laboratories
(including each animal’s ID number, breed,
name, color and distinctive markings, date of
birth, source, USDA pain category, and
assigned protocol); (2) Photographs and videos
of these or other dogs used in Stokes VAMC
labs (from January 1, 2010 to the present);
(3) Active [Institutional Animal Care and Use
Committee]-approved protocols to which these
dogs are assigned; and (4) Animal welfare
incident reports association with the
aforementioned projects (from January 1, 2010
to the present). 2
Compl., ECF No. 1 at 2 ¶ 8; see also Def.’s SOMF, ECF No. 20-1
at 1-2 ¶ 2. Acknowledging receipt of WCW’s request on April 5,
2017, Stokes VAMC responded to WCW on April 17, 2017, claiming
that it did not have responsive records. Decl. of Tomica
Jefferson (“Jefferson Decl.”), ECF No. 20-3 at 3 ¶ 7, 4 ¶ 8.
On April 26, 2017, WCW administratively appealed that
1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
2 WCW asserts—and the VA does not dispute—that “the [Animal
Welfare Act, 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.” 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. 21-1 at 11; see generally Def.’s Reply to Pl.’s Opp’n to
Def.’s Mot. for Summ. J. & Opp’n to Pl.’s Cross-Mot. for Summ.
J. (“Def.’s Opp’n”), ECF No. 27 at 1-12.
3
response. Id. at 4 ¶ 9. Stokes VAMC then conducted a
“comprehensive search,” Def.’s SOMF, ECF No. 20-1 at 2 ¶ 4,
locating responsive records in a filing cabinet in a research
area, id. at 2 ¶ 7. Stokes VAMC found sixty-seven responsive
documents. Id. at 2 ¶ 4. Stokes VAMC produced fourteen pages in
part and withheld fifty-two pages in full. Id. The VA withheld
the census records under FOIA Exemptions 4, 5, and 6, 3 id. at 2 ¶
5, and the IACUC-approved protocols under Exemption 5, id. at 2
¶ 6. According to Stokes VAMC, there were no responsive
photographs, videos, and animal welfare reports. Id. WCW did not
challenge those categories of documents. Jefferson Decl., ECF
No. 20-3 at 7 ¶ 22.
On September 13, 2017, WCW filed a second administrative
appeal, challenging the withholdings in the census records and
the IACUC-approved protocols. Id. at 5 ¶¶ 18-19. Stokes VAMC
stood by all of its initial conclusions, with the exception of a
research protocol and certain census information. Id. at 5 ¶ 19.
3 “Congress included nine exemptions permitting agencies to
withhold information from FOIA disclosure.” Judicial Watch, Inc.
v. U.S. Dep’t of Treasury, 796 F. Supp. 2d 13, 23 (D.D.C. 2011)
(citing 5 U.S.C. § 552(b)). Exemption 4 covers “trade secrets
and commercial or financial information obtained from a person
[that is] privileged or confidential.” Id. § 552(b)(4).
Exemption 5 applies to “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).
4
Stokes VAMC “continue[d] to withhold the principal
investigators’ names as well as other research personnel within
the protocol and location of building rooms, pursuant to FOIA
Exemptions (b)(5) and (b)(6).” Id. at 5 ¶ 19(b). Stokes VAMC
explained that “[p]rincipal investigators as well as other
research personnel have a privacy interest in being protected
from annoyance and harassment” pursuant to Exemption 6, id. at 6
¶ 20(a), and the census records and protocol “discuss unadopted
opinions of the Principal Investigator and research personnel”
pursuant to Exemption 5, id. at 7 ¶ 21(a).
On May 1, 2017, WCW submitted a second FOIA request to
Stokes VAMC, seeking to obtain the following records:
(1) Invoices for all dogs purchased or
otherwise procured by Stokes VAMC (from
January 1, 2016-present); (2) Acquisition and
disposition records for all dogs purchased or
otherwise procured by Stokes VAMC (from
January 1, 2016-present); (3) Complete animal
use and veterinary records for all dogs used
in Stokes VAMC experiments (from January 1,
2016-present); (4) Active IACUC-approved
Stokes VAMC protocol/s for the use of dogs;
(5) Animal welfare incident reports associated
with the use of dogs at Stokes VAMC (from
January 1, 2014-present); (6) All emails and
other records associated with the adoption of
any dogs from Stokes VAMC (January 1, 2016-
present); (7) Inactive IACUC-approved
protocol/s for the use of dogs (from January
1, 2015-present); and (8) Photographs and
videos of dogs used in Stokes VAMC labs (from
January 1, 2010-present).
Compl., ECF No. 1 at 4-5 ¶ 21. On August 3, 2017, Stokes VAMC
5
released 169 pages of responsive documents, withholding in part
certain information under Exemptions 4, 5, and 6. Jefferson
Decl., ECF No. 20-3 at 8 ¶ 27; see also Def.’s SOMF, ECF No. 20-
1 at 3 ¶ 9. Stokes VAMC redacted names under Exemption 6,
withheld the protocols under Exemption 5, and withheld other
information (i.e. “company names, addresses, invoice numbers and
the like”) under Exemption 4. Def.’s SOMF, ECF No. 20-1 at 3 ¶
10. On September 20, 2017, after litigation had already begun,
the VA’s Office of General Counsel received WCW’s administrative
appeal regarding the August 3, 2017 production. Jefferson Decl.,
ECF No. 20-3 at 9 ¶ 31. After the VA’s Office of General Counsel
issued a remand to Stokes VAMC to process WCW’s appeal, Stokes
VAMC eventually released 217 pages of responsive documents on
March 9, 2018. Id. at 9 ¶¶ 32, 34. Stokes VAMC partially
withheld the majority of those records under Exemptions 5 and 6,
including the names of principal investigators, and redacted
some “invoice” information under Exemptions 4, 5, and 6. Def.’s
SOMF, ECF No. 20-1 at 3 ¶ 12.
Stokes VAMC also turned over a redacted version of an
animal research protocol, entitled “High Frequency Spinal Cord
Stimulation to Restore Cough.” Pl.’s SOMF, ECF No. 21-2 at 8 ¶
49; see also Pl.’s Mem., ECF No. 21-1 at 17 (asserting that
“Stokes VAMC’s experimenters cut the spinal cord[s] of mongrel
dogs to paralyze them and then attempt to restore a cough in the
6
paralyzed dogs.”). The protocol is a forty-eight-page document,
subject to redactions pursuant to Exemptions 5 and 6. Def.’s Ex.
A, Jefferson Decl., ECF No. 20-3 at 18 (showing an excerpt of
the Vaugh index). 4 That redacted document—the protocol at issue—
excludes the name of the principal investigator. See Pl.’s SOMF,
ECF No. 21-2 at 8 ¶¶ 49-50. Over the course of this litigation,
the parties have narrowed the scope of the dispute to the
protocol at issue. See Decl. of Matthew Strugar (“Strugar
Decl.”), ECF No. 21-4 at 2 ¶ 10. WCW solely challenges the
redactions of the principal investigator’s name in the protocol
in order to hold that person and the VA accountable. Id. at 8 ¶
50; see also Pl.’s Mem., ECF No. 21-1 at 35.
Both parties moved for summary judgment. See, e.g., Def.’s
Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 20; Def.’s Mem. of P.
& A. in Supp. of Def.’s Mot. (“Def.’s Mem.”), ECF No. 20-2 at 1-
19; Pl.’s Cross-Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 21 at
1-3. 5 The VA argues that it is entitled to summary judgment for
the following five reasons: (1) it conducted adequate searches
4 “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. U.S. Dep’t of Justice, 830 F.2d 337, 349
(D.C. Cir. 1987)).
5 WCW’s cross-motion for summary judgment was not accompanied by
a proposed order as required by Local Civil Rule 7.1(c). See
LCvR 7.1(c) (“Each motion and opposition shall be accompanied by
a proposed order.”); see generally Pl.’s Mot., ECF No. 21.
7
for the responsive records; (2) it properly withheld certain
financial, tax and other information of vendors under Exemption
4; (3) it appropriately withheld census and protocol records
under Exemption 5 because those “records are a deliberative
prelude to a report that the VA typically makes publicly
available[;]” (4) it properly invoked Exemption 6 to protect the
privacy interests of its employees and shield them from
harassment “[g]iven the nature of animal research work and
antipathy towards [that research][;]” and (5) it released all
reasonably segregable, non-exempt information, withholding
exempt information under Exemptions 4, 5, and 6. Def.’s Mem.,
ECF No. 20-2 at 1-2. In moving for summary judgment, WCW argues
that the VA has failed to demonstrate that the name of the
principal investigator on the animal research protocol is exempt
from disclosure. Pl.’s Mot., ECF No. 21 at 1. WCW contends that
the VA waived all claimed exemptions to the principal
investigator’s name by previously disclosing it in the public
domain. 6 Pl.’s Mem., ECF No. 21-1 at 22-24. WCW concedes that the
VA has adequately conducted its searches, properly invoked
6 WCW’s waiver argument falls under the “official acknowledgment”
doctrine. See Montgomery v. IRS, 356 F. Supp. 3d 74, 81–82
(D.D.C. 2019) (“The [plaintiffs] root their first set of
objections in a species of waiver doctrine known as ‘official
acknowledgement.’ Under that doctrine, an agency may be barred
from asserting . . . a FOIA exemption if doing so would be
irreconcilable with its previous official statements.” (citing
Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007)).
8
Exemption 4 to the withholdings, and appropriately segregated
the non-exempt information from the exempt information. Id. at
21-22; see also Def.’s Opp’n, ECF No. 27 at 3. 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
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. U.S. Dep’t of Justice, 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,
9
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
other documents.’” SafeCard Servs., 926 F.2d 1197 at 1200
(citation omitted).
IV. Analysis
As stated by WCW, “[t]he parties’ cross-motions for summary
judgment in this case involve one piece of information: the name
of the principal investigator on a publicly-funded experiment on
dogs at [Stokes VAMC] entitled ‘High Frequency Spinal Cord
Stimulation to Restore Cough.’” Pl.’s Reply, ECF No. 29 at 5.
The sole dispute is whether the VA’s redactions of the principal
investigator’s name on the protocol at issue were justified
under Exemptions 5 and 6. 7 The VA advances four primary arguments
7 WCW does not contest the adequacy of the searches, the
applicability of the withholdings under Exemption 4, and the
10
for why the redactions were proper. The VA’s first argument is
that the non-final research protocols are government agency
records; thus, those records are covered under Exemption 5’s
deliberative process privilege. Def.’s Mem., ECF No. 20-2 at 12-
13. Next, the VA argues that the redactions of the names of the
principal investigators and other research personnel were proper
under Exemption 6 to protect them from the possibility of
embarrassment and harassment in conducting the canine research,
which constitutes a substantial privacy interest against any
public interest in the name. Id. at 16-17; see also Def.’s
Opp’n, ECF No. 27 at 3-8. The VA’s next argument is that WCW
will gain access to the principal investigator’s name in due
segregability determinations. Pl.’s Mem., ECF No. 21-1 at 21-22.
Neither does WCW challenge the redactions to: (1) the principal
investigator’s address, telephone number, e-mail address, or any
other personal identifying information; or (2) non-principal
investigator’s information. Pl.’s Mem., ECF No. 21-1 at 32. The
Court deems those matters as conceded. See Lewis v. District of
Columbia, No. 10–5275, 2011 WL 321711, at *1 (D.C. Cir. Feb. 2,
2011) (per curiam) (“It is well understood in this Circuit that
when a plaintiff files an opposition to a dispositive motion and
addresses only certain arguments raised by the defendant, a
court may treat arguments that the plaintiff failed to address
as conceded.” (citation and internal quotation marks omitted)).
The Court has an independent obligation to determine whether the
government 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 declaration and the Vaughn indices, see, e.g.,
Def.’s Mot., ECF No. 20-2 at 17-18; Jefferson Decl., ECF No. 20-
3 at 2-18, the Court finds that the VA has fulfilled its
obligations with respect to these uncontested matters.
Accordingly, the Court GRANTS Defendant’s motion for summary
judgment as to the adequacy of the searches, the withholdings
under Exemption 4, and the segregability determinations.
11
course based on its “practice of releasing the names of
principal investigators along with completed research protocols
in abstract form.” Def.’s Opp’n, ECF No. 27 at 8. Finally, the
VA contends that it has not waived any exemptions with respect
to withholding the principal investigator’s name because the
research has not been released to the public. Id. at 10. And WCW
has failed to meet its “burden of pointing to specific information
in the public domain that duplicates that being withheld” because
“[the VA] has not published or publicly disclosed the exact
protocol that [WCW] would need to be able to meet this Circuit’s
strict standard.” Id.
WCW responds that the protocol was improperly withheld
under Exemption 5 because: (1) information and names in research
protocols constitute factual material that the deliberative
process privilege rarely covers, Pl.’s Mem., ECF No. 21-1 at 26,
and (2) the agency is neither “coming up with the names of its
principal investigators” nor “using the names of investigators
to formulate agency policy,” id. at 27. WCW contends that the
principal investigator only has a de minimis privacy interest in
his or her name. Id. at 28-29, 35. Finally, WCW argues that the
VA has waived any claimed exemptions for redacting the principal
investigator’s name on the protocol at issue because “the exact
information that WCW seeks through this litigation has already
been published by the VA itself,” id. at 24, and the National
12
Institute of Health (“NIH”) published the name of the principal
investigator on its online database, id. at 22.
The Court will address each argument in turn, concluding
that the VA improperly withheld the principal investigator’s
name under Exemption 5, and that the Court lacks sufficient
information to determine whether the name was properly withheld
under Exemption 6.
A. The VA Improperly Withheld the Principal
Investigator’s Name under Exemption 5
“Exemption 5 permits an agency to withhold materials
normally privileged from discovery in civil litigation against
the agency.” Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir.
1997). To withhold a document under Exemption 5, the “document
must meet two conditions: [1] its source must be a Government
agency, and [2] it must fall within the ambit of a privilege
against discovery under judicial standards that would govern
litigation against the agency that holds it.” Stolt–Nielsen
Transp. Grp. Ltd. v. United States, 534 F.3d 728, 733 (D.C. Cir.
2008) (citation and internal quotation marks omitted). Exemption
5 encompasses the deliberative process privilege as 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. Dent v. Exec. Office
for U.S. Attorneys, 926 F. Supp. 2d 257, 267–68 (D.D.C. 2013).
13
To fall within the scope of the deliberative process
privilege, withheld materials must be both “predecisional” and
“deliberative.” Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537
(D.C. Cir. 1993). A communication is predecisional if “it was
generated before the adoption of an agency policy” and
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. The deliberative process
privilege is to be construed “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)). 8
According to the VA, the research protocols are
8 The VA argues that the census records are deliberative in
nature because those documents discuss “unadopted opinions” of
the researchers, Def.’s Mem., ECF No. 20-2 at 14 (quoting
Jefferson Decl., ECF No. 20-3 at 7 ¶ 21(a)); see also Def.’s
Opp’n, ECF No. 27 at 2, 11, and that the census records are
predecisional because the researchers gathered facts in those
records for draft research purposes, see Def.’s Mem., ECF No.
20-2 at 14-15. Since the narrow dispute in this case concerns
the redactions of the principal investigator’s name in the
protocol, the census records are not at issue and the Court need
not resolve an undisputed issue. See, e.g., Pl.’s Mem., ECF No.
21-1 at 21-22; Def.’s Opp’n, ECF No. 27 at 2-3; Pl.’s Reply, ECF
No. 29 at 9.
14
predecisional because those documents consist of a complication
of factual materials created by the researchers for draft
research purposes. See Def.’s Mem., ECF No. 20-2 at 15. The VA
further argues that the protocols are deliberative in nature
because those documents discuss “unadopted opinions” of the
principal investigator and research personnel. Id. at 14
(quoting Jefferson Decl., ECF No. 20-3 at 7 ¶ 21 (a)). The
United States Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”) has made clear that “[i]f [the] agency
records are indeed deliberative, it is appropriate to apply
Exemption 5 to the documents themselves, as well as to the names
of their authors.” Brinton v. Dep’t of State, 636 F.2d 600, 604
(D.C. Cir. 1980). It is undisputed that the protocols are agency
records. Def.’s Mem., ECF No. 20-2 at 13; see generally Pl.’s
Mem., ECF No. 21-1. But the protocol at issue has already been
produced to WCW, subject to the redactions. Pl.’s Reply, ECF No.
29 at 8. The question remains whether the name itself can be
redacted under Exemption 5. 9
9 The Court will not decide whether the protocol itself is
predecisional or deliberative because the parties only dispute
the principal investigator’s redacted name—the protocol itself
is not at issue. 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 memorandum was a predecisional document because the
parties only challenged the redacted signature pages in the
memorandum). For the same reasons, the Court need not address
the issue of whether the protocol qualifies as an agency final
decision.
15
The Court is not persuaded that the principal
investigator’s name should be shielded under Exemption 5’s
deliberative process privilege. Neither party disputes that “the
selection or organization of facts can be part of an agency’s
deliberative process and so exempt from FOIA,” Def.’s Mem., ECF
No. 20-2 at 15 (citing Ancient Coin Collectors Guild v. U.S.
Dep’t of State, 641 F.3d 504, 513 (D.C. Cir. 2011)). But the
factual material in this case is the principal investigator’s
name, and the VA has failed to show how the redacted name
assisted the agency with the decision-making process. The VA’s
reliance on Ancient Coin Collectors Guild v. United States
Department of State, 641 F.3d 504 (D.C. Cir. 2011), is
misplaced. In that case, the 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.” Ancient Coin Collectors Guild, 641 F.3d at 513. The
D.C. Circuit reasoned that the factual summaries in a federal
advisory committee’s reports regarding import restrictions on
cultural artifacts reflected an “exercise of discretion and
judgment calls,” id. at 513, because the factual materials
“include[d] lists of events selected to show whether a given
type of item ha[d] been pillaged[,]” id. at 514. The D.C.
16
Circuit concluded that the factual summaries were covered under
Exemption 5 because those documents “were culled by the
Committee from the much larger universe of facts presented to
it[.]” Id. at 513 (citation omitted).
Here, the principal investigator’s name neither reflects an
“exercise of judgment as to what issues” should bear on the
research, id., nor involves the selection of facts as part of
the agency’s deliberative process, see id. WCW does not dispute
the VA’s assertion that research may fall within the scope of
the deliberative process privilege, see Def.’s Mem., ECF No. 20-
2 at 15, but WCW maintains that a name is not “an opinion
(adopted or un-adopted) of any employee,” Pl.’s Reply, ECF No.
29 at 17. Indeed, a court has held that the names on a signature
page in a memorandum were “indisputably ‘factual,’” and the
“names of those who signed the memorandum [could not] 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. v. U.S. Dep’t of Interior, 976
F.2d 1429, 1434 (D.C. Cir. 1992)). The same is true here. The VA
fails to show how the principal investigator’s name
“implicate[s] any deliberative process that may have gone into
the creation of the [protocol] as a whole[.]” Id. The VA has not
met its burden of demonstrating that the principal
investigator’s name “bear[s] on the formulation or exercise of
17
agency policy-oriented judgment.” Petroleum Info. Corp., 976
F.2d at 1435 (emphasis in original). The Court therefore finds
that the principal investigator’s name in the protocol is
neither predecisional nor deliberative. Accordingly, the Court
GRANTS WCW’s cross-motion for summary judgment and DENIES the
VA’s motion for summary judgment as to the redactions of the
principal investigator’s name pursuant to Exemption 5.
B. The Court Lacks Sufficient Information to Determine
Whether the VA Properly Withheld the Principal
Investigator’s Name Under Exemption 6
The Court next considers whether the VA properly withheld
the principal investigator’s name under Exemption 6. Exemption 6
permits withholding of information when two requirements have
been met. See U.S. Dep’t of State v. Wash. Post Co., 456 U.S.
595, 598 (1982). The first requirement is that “the information
must be contained in personnel, medical or ‘similar’ files.” Id.
The statutory formulation “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). Thus, Exemption
6 permits exemption of “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
18
Watch, Inc. v. FDA, 449 F.3d 141, 152 (D.C. Cir. 2006) (citation
and internal quotation marks omitted).
The second requirement is that “the information must be of
such a nature that its disclosure would constitute a clearly
unwarranted invasion of personal privacy.” See Wash. Post Co.,
456 U.S. at 598. This requirement demands that a 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 in a FOIA case 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 Investigator’s Name Is Information
Contained in “Similar Files”
The parties agree that the principal investigator’s name is
information that is not contained within the categories of
“personnel” or “medical” files. See, e.g., Def.’s Opp’n, ECF No.
27 at 4 (arguing that the VA properly withheld the information
from “similar” files because “even information that is not
19
specifically located in ‘personnel files’ falls within the
protections of Exemption 6.”); Pl.’s Mem., ECF No. 21-1 at 29-
32. With regard to the “similar files” category, WCW
acknowledges that the categorization has a broad meaning. See
Pl.’s Mem., ECF No. 21-1 at 29. 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 individual[,]’” including names and other personal
identifying information. Prison Legal News, 787 F.3d at 1146–47
(quoting Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d
1108, 1124 (D.C. Cir. 2004)). Nevertheless, WCW contends that
“this broad construction is not unbounded” and that the broad
application does not encompass “[i]nformation concerning an
individual government employee that is ‘essentially business,’
rather than personal, in nature . . . .” Pl.’s Mem., ECF No. 21-
1 at 29. (quoting Sims v. CIA, 642 F.2d 562, 574 (D.C. Cir.
1980)).
WCW argues that the protocol at issue is not a record
concerning the principal investigator, but “it is a document
detailing the experiments the investigator will lead.” Id. at
30. In response, the VA argues that the test for Exemption 6—
that “all information that ‘applies to a particular individual’
meets the threshold requirement for Exemption 6—applies to the
principal investigator in this case. See Def.’s Opp’n, ECF No.
20
27 at 4 (quoting Wash. Post Co., 456 U.S. at 602); see also
Wash. Post Co., 456 U.S. at 602 n.4 (“[T]here are undoubtedly
many Government files which contain information not personal to
any particular individual, the disclosure of which would
nonetheless cause embarrassment to certain persons.”). The Court
agrees.
WCW’s suggestion—that the principal investigator’s name is
not personal in nature—is unavailing. Prior to the Supreme
Court’s decision in United States Department of State v.
Washington Post Company, 456 U.S. 595 (1982), the D.C. Circuit
in Sims held that “Exemption 6 was developed to protect intimate
details of personal and family life, not business judgments and
relationships. Surely it was not intended to shield matters of
such clear public concern as the names of those entering into
contracts with the federal government.” 642 F.2d at 575. The
D.C. Circuit determined that the Central Intelligence Agency
(“CIA”)’s records, including “names of persons and institutions
who conducted scientific and behavioral research under contracts
with or funded by the CIA,” id. at 563, for a project that
resulted in the death of individuals were not “similar files”
for Exemption 6 purposes, id. at 564, 574-75.
More than twenty-five years after Sims, the D.C. Circuit in
Judicial Watch, Inc. v. Food & Drug Administration recognized
that the Supreme Court has interpreted Exemption 6 broadly and
21
that broad application “does not ‘turn upon the label of the
file which contains the damaging information.’” 449 F.3d at 152
(quoting Wash. Post Co., 456 U.S. at 601). Acknowledging that
FOIA does not only exempt “just files, but also bits of personal
information, such as names and addresses,” id. (emphasis added),
the D.C. Circuit held that the agency “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.” Id. at 153. In reaching that
conclusion, 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.” Id. The D.C. Circuit concluded
that the agency properly withheld the names of the agency
personnel and other personal information under Exemption 6 “to
protect [those associated with mifepristone] from the injury and
embarrassment that can result from the unnecessary disclosure of
personal information.” Id. (quoting Wash. Post Co., 456 U.S. at
599).
The Court is persuaded that the principal investigator’s
name in the protocol falls within the “similar files” category.
See id.; see also Wash. Post. Co., 456 U.S. at 602 (holding that
passport information satisfied Exemption 6’s “similar files”
22
requirement, and explaining that nondisclosure “should have been
sustained upon a showing by the Government that release of the
information would constitute a clearly unwarranted invasion of
personal privacy.”). To be clear, the Court does not find that
the VA has presented evidence that WCW is encouraging
threatening behavior against the VA and its research personnel
as in Judicial Watch, Inc. v. Food & Drug Administration, 449
F.3d at 152-53. At the same time, the Court cannot ignore that
the VA’s dog experiments, including those at Stokes VAMC, have
prompted speculation and generated media attention. See, e.g.,
Pl.’s Mem., ECF No. 21-1 at 12-15; Decl. of Justin Goodman
(“Goodman Decl.”), ECF No. 21-3 at 4 ¶ 13 (stating that “more
than fifty separate news stories detail[] the controversy over
the McGuire VAMC’s dog experiments.”); id. at 7 ¶ 14 (“A variety
of news outlets have also reported on dog experiments at the
Stokes VAMC[.]”). Members of Congress have called for
accountability and transparency in government-funded animal
experimentation. Pl.’s Mem., ECF No. 21-1 at 13; see also
Goodman Decl., ECF No. 21-3 at 3 ¶ 12. Furthermore, WCW has
publicly criticized the experiments. See Pl.’s SOMF, ECF No. 21-
2 at 3 ¶ 17. It is undisputed that WCW “asked supporters to call
the Richmond VAMC’s Public Affairs Officer and express
opposition to the facility’s painful and deadly dog
experiments.” Id. Finally, media outlets have reported that
23
activists have participated in organized protests outside of
Stokes VAMC, challenging the dog experiments carried out by the
VA’s researchers. 10 While it is true that Sims made clear that
Exemption 6 does not apply to business judgments and
relationships, 642 F.2d at 575, the VA characterizes the nature
of the privacy interests at stake here as a concern that the
principal investigator will be subjected to possible harassment
for the controversial dog experiments at Stokes VAMC. Given that
the phrase “similar files” is to be accorded a broad
application, the Court therefore finds that the principal
investigator’s name falls within Exemption 6’s “similar files”
category. 11
10“Taking judicial notice of the existence of [news] articles is
entirely proper.” Sandza v. Barclays Bank PLC, 151 F. Supp. 3d
94, 113 (D.D.C. 2015) (emphasis in original) (citing Wash. Post
v. Robinson, 935 F.2d 282, 291 (D.C. Cir. 1991)). The Court
therefore takes judicial notice of the existence of news
articles concerning the protests at Stokes VAMC. See, e.g.,
Natasha Anderson & Jennifer Jordan, Activists Protest Cleveland
VA Medical Center After Hospital Allegedly Received 3 New Dogs
for Testing, FOX 8 Cleveland News (Apr. 6, 2019, 8:46 PM),
https://fox8.com/2019/04/06/activists-protest-cleveland-va-
medical-center-after-hospital-allegedly-received-3-new-dogs-for-
testing/; Amber Cole, Protesters Gather at Louis Stokes VA
Medical Center, Ask for the Release of 3 Beagles, WOIO Cleveland
19 News (Apr. 6, 2019, 2:47 PM),
https://www.cleveland19.com/2019/04/06/protesters-gather-louis-
stokes-va-medical-center-ask-release-beagles/.
11WCW’s reliance on two decisions in this jurisdiction and an
out-of-Circuit decision—to support its argument that the
principal investigator’s name is “essentially business” in
nature—does not alter the Court’s conclusion. See Pl.’s Mem.,
ECF No. 21-1 at 29 (citing Aguirre v. SEC, 551 F. Supp. 2d 33,
54 (D.D.C. 2008); Leadership Conference on Civil Rights v.
24
2. The VA Has Failed to Provide Sufficient
Information as to Whether the Principal
Investigator Has a Substantial Privacy Interest
in His or Her Name
Having determined that the principal investigator’s name
satisfies Exemption 6’s “similar files” requirement, this Court
“must determine whether the information is of such a nature that
its disclosure would constitute a clearly unwarranted privacy
invasion.” 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.” Sai v. Transp. Sec. Admin., 315 F. Supp. 3d 218, 259
(D.D.C. 2018). The threshold question is “whether disclosure of
the files would compromise a substantial, as opposed to de
minimis, privacy interest, because if no significant privacy
Gonzales, 404 F. Supp. 2d 246, 257 (D.D.C. 2005); Gordon v. FBI,
390 F. Supp. 2d 897, 902 (N.D. Cal. 2004)). In Aguirre, the
court found that even if the names of SEC employees referenced
in the plaintiff’s employment and termination paperwork were
considered “similar files,” those documents did not implicate
the privacy interests of the SEC employees. 551 F. Supp. 2d at
55. In Gonzales, the court found that the names and work
telephone numbers of paralegals at the Justice Department’s
Public Integrity Section relating to monitoring federal
elections were not similar to “personnel” or “medical” files.
404 F. Supp. 2d at 257. In Gordon, a non-binding, out-of-Circuit
decision, the court held that the agency’s redactions of the
names of government officials in an e-mail forwarding a news
article about a retired Coast Guard lieutenant commander whose
name was similar to a name on the No-Fly list were unjustified.
390 F. Supp. 2d at 902. Aguirre, Gonzales, and Gordon are
readily distinguishable because those cases did not involve
government employees developing a controversial abortion drug as
in Judicial Watch, Inc. v. FDA, 449 F.3d at 153, or conducting
controversial dog experiments at federal research facilities.
25
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). “Substantial,
in this context, means less than it might seem. A substantial
privacy interest is anything greater than a de minimis privacy
interest.” Humane Soc’y of United States v. Animal & Plant
Health Inspection Serv., 386 F. Supp. 3d 34, 43 (D.D.C. 2019)
(citation and internal quotation marks omitted). For the reasons
explained below, the Court finds that the VA has failed to
provide sufficient information to clear this first hurdle.
WCW makes three main arguments why principal investigators
have no substantial privacy interests in their names. First, WCW
contends that principal investigators are not “government
employees who are involved in law enforcement or national
security positions.” Pl.’s Mem., ECF No. 21-1 at 31. Next, WCW
argues that principal investigators do not have substantial
privacy interests because their names are listed on government
websites, including the VA’s own website, as required by 5
C.F.R. § 293.311. Id. at 30-35. WCW goes on to argue the VA
itself, along with the NIH, published the name of the principal
investigator. 12 Id. Finally, WCW points to the “[e]videntiary
12WCW argues that the Stokes VAMC researchers do not have a
substantial privacy interest in their names because they have
included their names in publicly-available academic journals.
See Pl.’s Mem., ECF No. 21-1 at 33-35. The VA does not dispute
26
[f]laws” in two of the VA’s declarations, arguing that: (1) the
declarations do not show a substantial privacy interest in
preventing the disclosure of the name, id. at 39; and (2) the
majority of the statements in the declarations are inadmissible
because they are hearsay, speculative, and not based on the
declarants’ personal knowledge, id. at 39-43; see also Pl.’s
Reply, ECF No. 29 at 9-10.
Maintaining that there is a substantial privacy interest in
the principal investigator’s name, the VA heavily relies on its
declarations to support its position that disclosure of the
principal investigator’s name could subject him or her to
embarrassment and harassment. Def.’s Opp’n, ECF No. 27 at 5-8.
The VA argues that it properly withheld that name because the
Supreme Court has “clarified that all information that ‘applies to
a particular individual’ meets the threshold requirement for
Exemption 6.” Id. at 4 (quoting Wash. Post Co., 456 U.S. at 602).
The VA contends that it is “necessary” to withhold the name “to
protect them from potential attack, harassment, or threatening
behavior beyond the incidents that already occurred” where advocacy
this assertion. See Def.’s Opp’n, ECF No. 27 at 11; see also
Pl.’s Reply, ECF No. 29 at 14. Accordingly, the Court treats
WCW’s argument as conceded. See LCvR 7(b); see also Texas v.
United States, 798 F.3d 1108, 1110 (D.C. Cir. 2015) (“[Local
Civil Rule 7(b)] is understood to mean that if a party files an
opposition to a motion and therein addresses only some of the
movant’s arguments, the court may treat the unaddressed
arguments as conceded.” (citation omitted)).
27
groups and members of the public targeted individual researchers at
other facilities. Id. at 7; see also Fallon Decl., ECF No. 20-3 at
22-23 ¶¶ 9, 11-12, 15. But the VA does not respond to WCW’s
evidentiary objections to the statements contained in the two
declarations. See generally Def.’s Opp’n, ECF No. 27 at 1-12;
see also Pl.’s Reply, ECF No. 27 at 10. The Court will address,
in turn, each of these arguments.
WCW’s first argument—that government employees who do not
hold law enforcement and national security positions lack
substantial privacy interests in their names—is unavailing. See
Pl.’s Mem., ECF No. 21-1 at 31; see also Pl.’s Reply, ECF No. 29
at 13. To support its position, WCW relies on Walston v. United
States Department of Defense, 238 F. Supp. 3d 57, 67 (D.D.C.
2017) (Sullivan, J.). In Walston, this Court found that the
agency properly withheld the names and other personal
identifying information of low-level government employees who
conducted an investigation into the plaintiff’s allegations of
hacking activity by a government employee because such
information satisfied Exemption 6’s first requirement and the
investigators had a “cognizable privacy interest in keeping
their names from being disclosed” because they were employed in
a “sensitive agenc[y]” and had “sensitive occupations.” Id.
(quoting Long v. Office of Pers. Mgmt., 692 F.3d 185, 192 (2d
Cir. 2012)). WCW overstates the holding in Walston as carving
28
out a rule that all government employees working in law
enforcement and national security automatically have significant
privacy interests in all circumstances under Exemption 6.
Indeed, the D.C. Circuit has explained that Exemption 6 “does
not categorically exempt individuals’ identities because the
privacy interest at stake may vary depending on the context in
which it is asserted.” Am. Immigration Lawyers Ass’n v. Exec.
Office for Immigration Review, 830 F.3d 667, 675 (D.C. Cir.
2016) (citation and internal quotation marks omitted).
While it is true that this Court and others in this
jurisdiction have recognized that law enforcement and national
security officials have substantial privacy interests in their
identities, see, e.g., Walston, 238 F. Supp. 3d at 67; Welenc v.
Dep’t of Justice, No. CV 17-0766 (RBW), 2019 WL 2931589, at *8
(D.D.C. July 8, 2019), WCW has failed to cite any D.C. Circuit
precedent—and the Court is aware of none—that holds a government
employee (i.e. a researcher or a principal investigator) cannot
have substantial privacy interests in their names outside of the
law enforcement context, see Pl.’s Mem., ECF No. 21-1 at 31-32.
The opposite is true. See Judicial Watch, Inc. v. FDA, 449 F.3d
at 153 (holding that the agency properly invoked Exemption 6 to
withhold names of FDA employees and others who worked on
approving a controversial abortion drug).
WCW’s other argument—that the principal investigator’s name
29
has already been made public because 5 C.F.R. § 293.311 requires
disclosure of the principal investigator’s name—is equally
unavailing. Pl.’s Mem., ECF No. 21-1 at 17, 31-32. Section
293.311 does not support WCW’s position. Section 293.311(a)
provides that a federal employee’s name and position, among
other things, is “information” that is generally “available to
the public[.]” 5 C.F.R. § 293.311(a). Under that provision, the
names of current and former federal employees consist of
“information from both the [Office of Personnel Management
(“OPF”)] and employee performance file system folders, their
automated equivalent records, and from other personnel record
files that constitute an agency record within the meaning of the
FOIA and which are under the control of the [OPF] . . . .” Id.
(emphasis added). WCW, however, fails to demonstrate that the
protocol at issue is under the control of OPF. See id. Even
assuming, arguendo, that the protocol at issue is under the
control of OPF, WCW ignores subsection (b), which provides that
“[t]he [OPF] or agency will generally not disclose information
where the data sought is a list of names . . . of Federal
employees” that “[w]ould otherwise be protected from mandatory
disclosure under an exemption of the FOIA.” 5 C.F.R. §
293.311(b). “The relevant regulation accordingly, by its own
terms, does not disarm an otherwise available FOIA exemption.”
Sai, 315 F. Supp. 3d at 260 (rejecting the FOIA requester’s
30
argument that the agency’s privacy redactions were improper
because 5 C.F.R. § 293.311 required disclosure).
The Court next considers whether there is a substantial
privacy interest that would justify withholding the principal
investigator’s name under Exemption 6. The VA argues that it
properly invoked Exemption 6 to protect the principal
investigator and other researchers from harassment, but the VA’s
declarations fail to provide any details about the possible
harassment of researchers at Stokes VAMC. See Def.’s Mem., ECF
No. 20-2 at 17; see also Def.’s Opp’n, ECF No. 27 at 7. In
general terms, one of the VA’s three declarants avers that
“[p]rincipal investigators as well as other research personnel
have a privacy interest in being protected from annoyance and
harassment.” Jefferson Decl., ECF No. 20-3 at 6 ¶ 20(a)
(emphasis added); id. at 8 ¶ 20(b) (stating that the “release of
their names . . . may also open these individuals to potential
attack, harassment or threatening behavior.” (emphasis added)).
The VA submits a declaration from the VA’s Chief Veterinary
Medical Officer whose office is located in Atlanta, Georgia, and
who “oversee[s] the animal research programs at all VA
facilities nationally, including [Stokes VAMC].” Fallon Decl.,
ECF No. 20-3 at 20 ¶ 1. The declarant provides specific examples
of threatening incidents at VA medical centers conducting dog
experiments in Richmond, Virginia (“Richmond VAMC”) and
31
Milwaukee, Wisconsin (“Milwaukee VAMC”). See id. at 21-26.
According to the declarant, the Richmond VAMC’s operator
received a bomb threat, id. at 21 ¶ 4, advocates protested at
the Richmond VAMC, id. at 21 ¶ 7, and the Milwaukee VAMC
received verbally abusive telephone calls from individuals
opposed to the canine research there, id. at 23 ¶ 15.
The declarant states that “[r]eleasing the names of
individual researchers puts them at increased risk of becoming
targets.” Id. at 24 ¶ 18. The declarant avers that WCW sought
the name of the principal investigator at the Richmond VAMC in a
separate FOIA lawsuit, and that the NIH inadvertently disclosed
his name. Id. at 21-22 ¶ 8; see also Pl.’s SOMF, ECF No. 21-2 at
4-5 ¶ 22 (“One of the reports released by NIH in response to
WCW’s request showed that Dr. Alex Tan, the principal
investigator on a McGuire VAMC dog experiment, showed ‘reckless
behavior’ and ‘lack of foresight’ after cutting open a dog’s
lung during a heart surgery.”). Shortly thereafter, the
principal investigator at the Richmond VAMC became a target for
his research. Fallon Decl., ECF No. 20-3 at 22 ¶ 9 (stating that
a comment on a website stated “OMG – This ‘TAN’ is a madman and
needs to be put down himself”). The declarant also states that
an animal rights advocates organized a protest at the homes of
three University of Florida researchers, id. at 22 ¶ 11, that
another researcher received a “threatening email,” id. at 23 ¶
32
13, and that an animal rights organization targeted a Yale
University researcher, id. at 23 ¶ 14. Despite these averments,
the VA acknowledges that the principal investigator’s name will
be released to the public. Jefferson Decl., ECF No. 20-3 at 6 ¶
20(c).
The VA submits a third declaration from the Chair of the
Animals in Research and Education Subcommittee of the Federation
of American Societies for Experimental Biology (“FASEB”). Kregel
Decl., ECF No. 20-3 at 28 ¶ 1. The declarant avers that other
researchers have been targeted by animal rights organizations
and individuals. Id. at 29 at ¶¶ 4-5. The declarant also states
that a 2014 FASEB report shows “animal rights extremist groups”
in the United States have been involved in approximately “220
incidents involving facility break-ins, thefts of animals,
property damage, and harassment” between 1990 to 2012. Id. at 28
¶ 2.
Based on the declarations, the Court is not persuaded that
the VA has shown that the “threat to [the principal
investigator’s] privacy is real rather than speculative.” Elec.
Privacy Info. Ctr. v. Dep’t of Homeland Sec., 384 F. Supp. 2d
100, 116 (D.D.C. 2005). The VA may be able to show that the
principal investigator at Stokes VAMC has a substantial privacy
interest in his or her name to avoid any potential threats or
harassment. See, e.g., Dep’t of Air Force v. Rose, 425 U.S. 352,
33
380 n.19 (1976) (“Exemption 6 [is] directed at threats to
privacy interests more palpable than mere possibilities.”); see
also Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d
873, 875 (D.C. Cir. 1989) (“[T]he privacy interest of an
individual in avoiding the unlimited disclosure of his or her
name and address is significant[.]”); Am. Farm Bureau Fed’n v.
EPA, 836 F.3d 963, 971 (8th Cir. 2016) (“The disclosure of names
. . . can implicate substantial privacy interests.”). It is
undisputed that WCW maintains a Facebook page with a comments
section, that WCW asked its supporters on Facebook to contact
the VA to express their opposition to dog experiments, and that
WCW disseminated photographs of dogs at a VA research facility.
Pl.’s SOMF, ECF No. 21-2 at 3 ¶¶ 16-17, 7 ¶¶ 42-43; see also
Pl.’s Mem., ECF No. 21-1 at 41, 44. It is also uncontested that
the dog experiments at Stokes VAMC have received media
attention. See Goodman Decl., ECF No. 21-3 at 7 ¶ 14. But, as
explained below, the declarations do not provide a basis for
justifying the nondisclosure of the principal investigator’s
name.
The Court cannot rely on declarations that are “reduced to
speculation and summary accounts of [] hearsay.” Humane Soc’y of
United States, 386 F. Supp. 3d at 45. As WCW correctly states,
“[a] declaration in support of a motion for summary judgment
‘must be made on personal knowledge’ and ‘set out facts that
34
would be admissible in evidence.’” Pl.’s Mem., ECF No. 21-1 at
39 (quoting Fed. R. Civ. P. 56(c)(4)). “[I]t is ‘well-settled
that only admissible evidence may be considered by the trial
court in ruling on a motion for summary judgment.’” Humane Soc’y
of United States, 386 F. Supp. 3d at 44 (quoting Bortell v. Eli
Lilly & Co., 406 F. Supp. 2d 1, 11 (D.D.C. 2005)). “And hearsay
evidence generally is inadmissible.” Id. (citing Fed. R. Evid.
802). “Hearsay is an out-of-court statement that ‘a party offers
in evidence to prove the truth of the matter asserted in the
statement.’” Id. (quoting Fed. R. Evid. 801(c)).
WCW takes issue with seventeen of the twenty-one paragraphs
contained in the Fallon declaration, and six of the eight
paragraphs contained in the Kregel declaration. 13 See Pl.’s Objs.
to Fallon Decl., ECF No. 21-5 at 1-11; see also Pl.’s Objs. to
Kregel Decl., ECF No. 21-5 at 11-14. WCW argues that both
declarations “lack[] any indicia of personal knowledge or
reliability on a variety of matters they offer testimony about
and documents they purport to rely on, including email messages
allegedly sent to and received by people entirely unassociated
with the [VA].” Pl.’s Reply, ECF No. 29 at 9; see also Pl.’s
13WCW bases its objections to the Fallon declaration on Federal
Rules of Evidence 401, 403, 602, 701, 802, and 1002. Pl.’s Objs.
to Fallon Decl., ECF No. 21-5 at 1-11. WCW also objects to the
Kregel declaration under Federal Rules of Evidence 403, 602,
701, 802, and 1002. Pl.’s Objs. to Kregel Decl., ECF No. 21-5 at
11-14.
35
Mem., ECF No. 21-1 at 39-43. WCW objects to the hearsay and
speculative statements contained in the challenged
declarations. 14 Pl.’s Mem., ECF No. 21-1 at 42-43, 46. The VA
does not respond to any of WCW’s arguments or objections with
respect to the declarations. See generally Def.’s Opp’n, ECF No.
27. Defendants have conceded these arguments and objections by
not responding to them. See Campbell v. Nat’l R.R. Passenger
Corp., 311 F. Supp. 3d 281, 327 n.13 (D.D.C. 2018) (Sullivan,
J.) (“Plaintiffs do not offer any response to this argument, and
thus concede it.”). The Court agrees with WCW’s argument that
14The Court observes that WCW does not object the following
statements contained in the Fallon declaration: (1) the operator
at Richmond VAMC initiated the bomb threat protocol and the
police evacuated employees from that facility, see Pl.’s Objs.
to Fallon Decl., ECF No. 21-5 at 1; (2) WCW, along with other
organizations, circulated photographs of dogs at Richmond VAMC,
id.; (3) Richmond VAMC received approximately 2,500 to 3,000
telephone calls of callers expressing opposition to the canine
research, id. at 2; (4) WCW brought a previous lawsuit seeking
certain documents at Richmond VAMC, WCW identified Dr. Alex Tan
as the researcher, id. at 3, and a comment on a website stated
that Dr. Tan “needs to be put down himself,” Fallon Decl., ECF
No. 20-3 at 22 ¶ 9; (5) “WCW has a record of repeatedly and
consistently promoting language that misrepresents the truth,
not only creating impressions that directly contradict the
facts, but also inspiring outrage in the reader in response to
the imagined atrocities[,] id. at 24 ¶ 18; (6) WCW offered a
reward that “not only discourages the communication with VA that
makes it possible for VA to investigate concerns, provide needed
animal care, and develop appropriate corrective actions to
prevent recurrence of any shortcomings, it incentivizes
individuals to disregard conventional mechanisms for solving
problems, which creates a culture of acceptance for behaviors
that are outside of social norms that constrain attacks on other
people[,]” id. at 26 ¶ 19.
36
numerous statements made in the Fallon and Kregel declarations
are inadmissible. See Pl.’s Reply, ECF No. 29 at 5, 9-10.
In this case, the VA “has established only the speculative
potential of a privacy invasion without any degree of
likelihood.” Norton, 309 F.3d at 37. The Court is mindful of the
decisions in this jurisdiction that have held that individuals
have a substantial privacy interest in their names under certain
circumstances. See, e.g., Am. Ctr. for Law & Justice v. U.S.
Dep’t of Justice, 334 F. Supp. 3d 13, 19-20 (D.D.C. 2018)
(holding that three FBI special agents who received an e-mail
from the Attorney General’s Office regarding the scheduling of a
conference call about a meeting between the Attorney General and
a former president had a substantial privacy interest in their
names); Judicial Watch, Inc. v. U.S. Dep’t of State, 875 F.
Supp. 2d 37, 47 (D.D.C. 2012) (finding that “[d]isclosure . . .
would likely lead to the publication of [two White House
Security staffers’] names and intrusion from media or others
seeking information about the [Keystone XL] pipeline and the
process”). Other courts, however, have found that declarations
based on conclusory statements and second-hand accounts do not
justify withholding individuals’ names under Exemption 6. See,
e.g., Humane Soc’y of United States, 386 F. Supp. 3d at 44-47;
Judicial Watch, Inc. v. Dep’t of the Navy, 25 F. Supp. 3d at
142-143. Indeed, the D.C. Circuit has made clear that the agency
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declaration must “give the reviewing court a reasonable basis to
evaluate the claim of privilege,” Judicial Watch, Inc. v.
FDA, 449 F.3d at 146 (citation omitted). The VA has failed to
carry its burden of demonstrating a substantial privacy interest
in the principal investigator’s name. Accordingly, the Court
DENIES IN PART Defendant’s motion for summary judgment.
* * *
The Court nonetheless finds that the VA has asserted a
potential substantial privacy interest. See, e.g., Elec. Privacy
Info. Ctr., 384 F. Supp. 2d at 117 (finding that redactions to
the names of federal employees were proper under Exemption 6
where “[t]he documents released by the defendants will likely be
published on the Internet once released to the plaintiff, and it
is likely that readers of the plaintiff’s reports, including
media reporters as well as private individuals, would seek out
the employees mentioned for further information” (footnote
omitted)); Island Film, S.A. v. Dep’t of the Treasury, 869 F.
Supp. 2d 123, 136 (D.D.C. 2012) (finding that low-level agency
personnel and third parties had “a privacy interest in avoiding
the harassment that could ensue following the disclosure of
their personal information” due to the risk of “unwarranted
public scrutiny or harassing phone calls to elicit sensitive
information”). The Court will take the same approach that was
taken in Judicial Watch, Inc. v. Department of the Navy, 25 F.
38
Supp. 3d at 143-144. In that case, the court found that the
agency failed to demonstrate that there was a substantial
privacy interest in the names of the signatories of a
memorandum. Id. at 143. The court, however, permitted the agency
to provide additional information “[g]iven that [the agency had]
identified a potential substantial privacy interest that might
exist in [that] case but ha[d] failed to provide the necessary
details for the Court to evaluate that interest[.]” Id.
The Court directs the VA to provide additional information
in the form of supplemental declarations or affidavits as to the
principal investigator’s privacy interest in withholding his or
her name under Exemption 6. The submissions of declarations or
affidavits “will not end the Exemption 6 inquiry. Rather, when
‘a substantial privacy interest is at stake,’ the court must go
on to ‘weigh that privacy interest in non-disclosure against the
public interest in the release of the records in order to
determine whether, on balance, disclosure would work a clearly
unwarranted invasion of personal privacy.’” Id. at 144 (quoting
Horner, 879 F.2d at 874). Accordingly, the Court HOLDS IN
ABEYANCE Plaintiff’s motion for summary judgment as to the
Exemption 6 issue.
3. WCW’s Requests for In Camera Review and the
Production of the Protocol
WCW invokes the “official acknowledgment” doctrine by
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arguing that the VA has waived any claimed exemptions to
withholding the principal investigator’s name. See Pl.’s Mem.,
ECF No. 21-1 at 22-24; see also Pl.’s Reply, ECF No. 29 at 6-8.
According to WCW, the VA has previously published the principal
investigator’s name in the public domain. Pl.’s Reply, ECF No.
29 at 5. The VA disagrees, arguing that the agency “has not
published or publicly disclosed the exact protocol that [WCW]
would need to be able to meet this Circuit’s strict standard.”
Def.’s Opp’n, ECF No. 27 at 10.
The D.C. Circuit has established “[a] three-part test [to]
determine[] whether an item is “officially acknowledged”:
(1) “the information requested must be as specific as the
information previously released”; (2) “the information requested
must match the information previously disclosed”; and (3) “the
information requested must already have been made public through
an official and documented disclosure.” Mobley v. CIA, 806 F.3d
568, 583 (D.C. Cir. 2015) (quoting Fitzgibbon v. CIA, 911 F.2d
755, 765 (D.C. Cir. 1990)). “Thus, the fact that information
exists in some form in the public domain does not necessarily
mean that official disclosure will not cause harm cognizable
under a FOIA exemption.” Wolf, 473 F.3d at 378. “The plaintiff
bears the burden of identifying specific information that is
already in the public domain due to official disclosure.”
Mobley, 806 F.3d at 583. Here, the specific information is the
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principal investigator’s name.
WCW argues that the VA focuses on the protocol instead of
the requested name. Pl.’s Reply, ECF No. 29 at 8. WCW points out
that the VA’s Office of Research and Development website has
already listed the name of the “PI” (i.e., the principal
investigator) for the “High Frequency Spinal Cord Stimulation to
Restore Cough.” E.g., Pl.’s Mem., ECF No. 21-1 at 19 (showing a
still image of the VA’s Office of Research & Development website
with the protocol at issue as one of the “FY 2018 Funded
Projects”); Pl.’s Reply, ECF No. 29 at 7. In response, the VA
contends that the research has not been completed or published.
Def.’s Opp’n, ECF No. 27 at 10. The VA states that it “will
release the names of the researchers in the protocols in dispute
once the research has been completed” based on its “practice of
releasing all completed research protocols in abstract form on
its website, along with the principal investigators’ names and
research credentials[.]” Id. at 11-12.
To determine whether the VA has already publicly released
the principal investigator’s name, WCW requests that this Court
conduct an in camera review of the first page of the protocol at
issue in the event that the Court finds that there is a
substantial privacy interest in the principal investigator’s
name. Pl.’s Mem., ECF No. 21-1 at 50 (citing Mehl v. EPA, 797 F.
Supp. 43, 48 (D.D.C. 1992); Maynard v. CIA, 986 F.2d 547, 558
41
(1st Cir. 1993)). WCW also requests that the Court order the
production of the unredacted protocol at issue if the Court
finds that the principal investigator’s privacy interest is not
outweighed by the public interest. Id. at 49-50.
The Court will not exercise its discretion to review the
withheld document. 5 U.S.C. § 552(a)(4)(B); see also Canning v.
United States Dep’t of State, 134 F. Supp. 3d 490, 502 (D.D.C.
2015) (“In camera review is a last resort[.]” (citation and
internal quotation marks omitted)). Because the Court has
directed the VA to provide additional information on the issue
of whether there is a substantial privacy interest in the
principal investigator’s name under Exemption 6, the Court
declines to conduct an in camera review or order the production
of the protocol at issue. Cf. Am. Immigration Lawyers Ass’n v.
U.S. Dep’t of Homeland Sec., 852 F. Supp. 2d 66, 82 (D.D.C.
2012) (“Because a district court should not undertake in camera
review of withheld documents as a substitute for requiring an
agency’s explanation of its claims exemptions in accordance with
Vaughn, the Court finds that the best approach is to direct
defendants to submit revised Vaughn submissions.” (citations
omitted)). Accordingly, the Court DENIES WITHOUT PREJUDICE WCW’s
requests for in camera review and the production of the
protocol, and DEFERS ruling on WCW’s wavier argument.
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V. Conclusion
For the reasons set forth above, the Court GRANTS IN PART
and DENIES IN PART Defendant’s Motion for Summary Judgment and
GRANTS IN PART, DENIES IN PART, and HOLDS IN ABEYANCE
Plaintiff’s Cross-Motion for Summary Judgment. Within thirty
days of the issuance of this Memorandum Opinion, the VA shall
submit amended declarations or affidavits that provide
additional information in order for this Court to evaluate the
asserted substantial privacy interest in the principal
investigator’s name. The Court DENIES WITHOUT PREJUDICE WCW’s
requests for in camera review and the production of the animal
research protocol, and DEFERS ruling on the issue of whether the
agency has officially acknowledged the principal investigator’s
name. A separate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
August 29, 2019
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