United States District Court, District of Columbia
September 30, 2000
PHYSICIANS COMMITTEE FOR RESPONSIBLE MEDICINE, ET AL., PLAINTIFFS,
DAN GLICKMAN, SECRETARY, DEPARTMENT OF AGRICULTURE, ET AL.; DEFENDANTS.
The opinion of the court was delivered by: James Robertson, District Judge.
In December 1999, plaintiffs filed a three-count complaint seeking
declaratory and injunctive relief under the Federal Advisory Committee
Act (FACA), 5 U.S.C. App. II, et seq. (1972), and the Freedom of
Information Act (FOIA), 5 U.S.C. § 552, for claims arising out of
the appointment and operation of the Dietary Guidelines Advisory Committee
for Year 2000 by the United States Department of
Agriculture (USDA) and the United States Department of Heath and Human
Services (DHHS). The parties have agreed to the dismissal of Count I.
Defendants have moved to dismiss Count II. The parties have filed
cross-motions for summary judgment on Count III. After hearing oral
argument on September 6, 2000, and having considered the entire record, I
have decided for the reasons set forth in this memorandum that plaintiffs
are entitled to a declaratory judgment on their FACA claim (Count II) and
to the release of certain documents on their FOIA claim (Count III).
The National Nutritional Monitoring and Related Research Act of 1990
requires that the Secretaries of Agriculture and Health and Human
Services publish Dietary Guidelines for Americans at least once every
five years. 7 U.S.C. § 5341(a)(1). The Guidelines set forth
recommended nutritional and dietary information, and are relied upon by
federal agencies in carrying out their responsibilities under federal
food, nutrition, and health programs.
On September 18, 1997, acting pursuant to regulations issued under the
Act, USDA announced the formation of an advisory committee that would
consider whether the 1995 Dietary Guidelines for Americans should be
revised "based on thorough evaluation of recent scientific and applied
literature and, if so, [to] proceed to develop recommendations for these
revisions in a report to the Secretaries." 62 Fed. Reg. 48982 (Sept. 18,
1997). After soliciting nominees for Committee membership through
publication in the Federal Register, 62 Fed. Reg. at 48982, USDA announced
the appointment of an eleven-member Committee on August 28, 1998.
The Committee met from September 1998 through September 1999.
Beginning in June 1999, plaintiff Physicians Committee for Responsible
Medicine submitted FOIA requests to USDA seeking information about the
Committee and its members, including the financial disclosure forms of
all Committee members and records relating to persons who were nominated
but not appointed. The USDA responded to these FOIA requests by
releasing some and withholding others under specific FOIA exemptions. By
December 1999, according to USDA, "[a]ll documents which were made
available to or prepared by the Committee had been made available to the
public." Bowman Decl. at ¶ 12. In early February 2000, the Committee
issued its report to the Secretaries of Agriculture and Health and Human
Services, and the Committee was disbanded.
Plaintiffs, a collection of individuals and groups who assert that
their views on nutrition and health were not adequately represented on
the Committee, filed this action in December 1999. Count I of the
complaint, which has been dismissed by agreement, challenged the
composition of the Committee itself under sections 5(b) and 5(c) of
FACA. Count II alleges that defendants violated the public
accountability and disclosure requirements of FACA section 10(b) and
seeks a declaratory judgment that a violation occurred and discovery into
the extent of the violation. The question presented by Count III has
been narrowed to whether USDA violated FOIA by withholding and redacting
documents under FOIA Exemption 6.
Count II — Public Disclosure of Documents under FACA
The relief plaintiffs seek is a judgment declaring that defendants
violated the public disclosure requirements of FACA section 10 by failing
to disclose on an ongoing basis all records prepared by or for the
Committee. Plaintiffs also seek leave to take discovery directed to the
question whether certain Committee working groups constituted "advisory
committees" subject to FACA's disclosure requirements. The motion to
dismiss asserts that
all documents have been released, that the claims set forth in count II
are moot, and that the injury plaintiffs allege is not redressable by the
1. Discovery concerning working groups
Notwithstanding the USDA's representation that "all documents which were
made available to or prepared for or by the Committee" have been made
available to the public, plaintiffs suspect that Committee working groups
generated documents that were never produced.
There is no record basis for such a suspicion. Plaintiffs do not attack
the adequacy of the defendants' affidavits, or challenge the thoroughness
of USDA's search of its records, or point to any "countervailing evidence
or apparent inconsistency of proof" that discredits the agency's position
that it has no such records. Perry v. Block, 684 F.2d 121, 127 (D.C.
Cir. 1982); see also Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981) (relying on affidavits appropriate if they "are not
controverted by either contrary evidence in the record [or] by evidence
of agency bad faith"). Nevertheless, plaintiffs insist that additional
records must exist in the form of email communications between working
group members or notes from private meetings.
It may well be that Committee members exchanged personal emails and
telephone conversations. There is no evidence, however, that the agency
ever had records describing these events. An agency "is under no duty to
disclose documents not in its possession," Rothschild v. Department of
Energy, 6 F. Supp.2d 38,40 (D.D.C. 1998), nor is an agency required to
create documents to respond to FOIA requests, NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 161-62 (1975). See also Goldgar v. Office of
Administration, Executive Office of the President, 26 F.3d 32, 35 (5th
Cir. 1994). Discovery to pursue a suspicion or a hunch is unwarranted.
2. Declaratory judgment
FACA obligates the government to make publicly available documents
"which were made available to or prepared for or by each advisory
committee." FACA § 10(b). And, unless the agency claims an exemption
under FOIA, "a member of the public need not request disclosure in order
for FACA 10(b) materials to be made available." Food Chemical News
v. Department of Health & Human Services, 980 F.2d 1468, 1469 (D.C.
Defendants do not dispute plaintiffs' claim that FACA 10(b) material,
not subject to a FOIA exception, was unavailable "for public inspection
and copying before or on the date of the advisory committee meeting to
which they apply." Id. What they do say is that plaintiffs' FACA claim
is moot, because all documents have now been made public. Plaintiffs
nevertheless demand a declaration that defendants violated FACA by
failing to release the documents on an ongoing basis,*fn1 asserting that
a declaratory judgment would provide them "valuable ammunition for
publicly questioning the final Dietary Guidelines."
A case is moot when it "has lost its character as a present, live
controversy of the kind that must exist if [the court] is to avoid advisory
opinions on abstract questions of law." Schering Corp. v. Shalala,
995 F.2d 1103, 1106 (D.C. Cir. 1993). Nevertheless "even the availability
of a `partial remedy' is `sufficient to prevent [a] case from being moot.'"
Calderon v. Moore,
518 U.S. 149, 150 (1996).
In Byrd v. EPA , 174 F.3d 239 (D.C. Cir. 1999), a panel of the Court of
Appeals declined to find mootness on facts closely analogous to those of
this case. "Because Byrd's injury resulted not only from EPA's failure
to provide him materials but also from the tardiness of their eventual
release,. . . . declaratory relief would afford Byrd some relief and
prevent his action from becoming moot." Id. at 244; see also Cummock v.
Gore, 180 F.3d 282 (D.C. Cir. 1999) (finding a declaratory judgment to be
an appropriate remedy for a FACA violation). The Byrd opinion is
difficult to reconcile with Payne Enterprises v. United States,
837 F.2d 486, 491 (D.C. Cir. 1988) ("A declaration that an agency's
initial refusal to disclose requested information was unlawful, after the
agency made that information available, would constitute an advisory
opinion in contravention of Article II of the Constitution"); and with
Hill v. U.S. Air Force, 795 F.2d 1067, 1073 (D.C. Cir. 1986). It is
nevertheless controlling authority. Here, as in Byrd, declaratory relief
"will provide [the plaintiffs] with this Court's declaration that the
agency failed to comply with FACA; and such a declaration will give
[them] `ammunition for [their] attack on the Committee's findings.'"
Byrd, 174 F.3d at 244. How effective such "ammunition" will be is not
for this Court to say.
B. Count III — FOIA Exemption 6.
The FOIA dispute centers on plaintiffs' request for documents revealing
the sources of income of members and the curricula vitae*fn2 of
nominees who were not appointed to the Committee. The dispute about income
sources has been narrowed still further and now involves USDA's redaction
of a single entry on one Committee member's disclosure form. In support
of that redaction, and the withholding of documents concerning nonappointed
nominees, USDA invokes FOIA Exemption 6, which permits withholding of all
information in "personnel and medical files and similar files" when the
disclosure of such information "would constitute a clearly unwarranted
invasion of personal privacy." 5 U.S.C. § 552(b)(6).
The parties are in agreement that the disputed documents and information
are "personnel and medical files and similar files" under exemption 6.
I must accordingly consider whether the individuals involved have rights
of privacy in those records, and, if they do, weigh those rights against
the public's interest in disclosure. Department of the Air Force v.
Rose, 425 U.S. 352, 372 (1976).
1. Sources of Income
An individual does have a privacy interest in information about the
sources of her income, but "employment history . . . is not normally
regarded as highly personal." United States Dep't of State v. Washington
Post, 456 U.S. 595, 600 (1982); see also Washington Post v. United States
Dep't of Health, 690 F.2d 252, 261 (D.C. Cir. 1982) (Exemption 6 does not
apply to a list of organizations in which consultants had financial
interests). USDA has already disclosed that the redacted entry
represents income related to the Committee member's service on a
corporate editorial board, and the form itself
discloses that the amount of income is greater than $10,000. The
incremental privacy interest in the identity of the corporation is
The asserted public interest is in learning whether a Committee member
was financially beholden to a person or entity that had an interest in
how the Dietary Guidelines might be amended. I find public interest
outweighs the privacy interest of the individual whose disclosure form
was redacted. See Washington Post, 690 F.2d at 265 ("[T]he public
disclosure of conflicts of interest is desirable despite its cost in loss
of personal privacy.").
2. Curricula vitae
The Supreme Court has rejected the position that "disclosure of a list
of names and other identifying information is inherently and always a
significant threat to the privacy of the individuals on the list.
Instead, . . . whether disclosure of a list of names is a significant or
a de minimis threat depends upon the characteristic(s) revealed by virtue
of being on the particular list, and the consequences likely to ensue."
Department of State v. Ray, 502 U.S. 164, 176 n. 12 (1991); see also
Kurzon v. Department of Health & Human Services, 649 F.2d 65, 69 (1st
Cir. 1981) ("[T]he loss of privacy involved in disclosing the identities
of all applicants is minimal; it is only the fact of rejection that
raises the possibility of an invasion of privacy.").
C.V.'s would presumably be redacted to protect personal data such as
home addresses, telephone numbers, e-mail addresses, and social security
numbers. Other information in a C.V. is ordinarily written down
precisely so that it will be displayed. The asserted stigma of rejection
is significantly diluted when shared among approximately 140 people.
Neither the applicants nor their nominators were given assurances of
confidentiality. The notice in the Federal Register did not promise
anonymity. 62 Fed. Reg. 48982 (Sept. 18, 1997); see also Kurzon v.
Department of Health and Human Services, 649 F.2d 65, 70 (1st Cir. 1981)
(finding no reasonable expectation of privacy in nonfunded grant
applications). I find the privacy interests of the nonappointed
applicants to be minimal.
The asserted public interest in disclosure is to understand the
agency's selection process. Knowing who was selected and who was not,
and learning their qualifications and affiliations, would advance that
public interest. This is not a case like Core v. United States Postal
Service, 730 F.2d 946 (4th Cir. 1984). There the asserted public
interest was to evaluate the competency of selected applicants;
information about nonselected applicants did not further that interest. I
find that the public interest in disclosure of the C.V.'s of nonappointed
applicants outweighs the privacy interests of the individuals involved.
An appropriate order accompanies this memorandum.
Upon consideration of the record and for the reasons set forth in the
accompanying memorandum, it is this __ day of September, 2000
Ordered that plaintiffs' motion to dismiss count I [#24] is granted, it
Ordered that defendants' motion to dismiss count II [#13] is granted in
part and denied in part, it is further
Ordered that plaintiffs' cross motion for partial summary judgment
[#33] is granted in part and denied in part, it is further
Ordered that defendants' motion for summary judgment [#26] is denied,
and it is further
Ordered, Adjudged, and Decreed that the defendants violated the Federal
Advisory Committee Act, 5 U.S.C. App. II § 10(b), by failing to
disclose all required Dietary Guidelines Advisory Committee documents in
a timely manner.