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In Defense of Animals v. National Institutes of Health and U.S. Dep't of Health and Human Services

April 14, 2008

IN DEFENSE OF ANIMALS, PLAINTIFF,
v.
NATIONAL INSTITUTES OF HEALTH AND U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Presently before the Court is [11] Federal Defendants' Motion for Partial Summary Judgment, [13] Plaintiff's Cross-Motion for Summary Judgment, and [17] Defendants' Second Motion for Partial Summary Judgment. Plaintiff In Defense of Animals ("IDA"), a non-profit animal advocacy organization, filed this action on September 10, 2004, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2000 & Supp. II 2002), against Defendants National Institutes of Health (NIH) and the United States Department of Health and Human Services (HHS), requesting that the Court compel Defendants to disclose agency records that were withheld from IDA and to grant IDA a public interest fee waiver for its FOIA request. On March 16, 2005, Defendants filed a [11] Motion for Partial Summary Judgment, requesting that the Court grant summary judgment in Defendants' favor as to all but 23 pages of requested documents referred to the United States Air Force (USAF) because "NIH conducted a reasonable search, properly invoked and justified its reliance on statutory exemptions [(4), (5), and (6)] under FOIA, and properly denied plaintiff's request for a blanket public interest fee waiver."

Defs.' Mem. for Part. Summ. J. at 10. Defendants also argue that Plaintiff did not exhaust its administrative remedies with respect to its document requests. Id. at 10-12. On March 13, 2005, Plaintiff filed a [13] Cross Motion for Summary Judgment and Opposition to Defendants' Motion for Partial Summary Judgment, arguing that Defendants' search for records was inadequate; that Defendants wrongfully denied Plaintiff's public interest fee waiver request; that Plaintiff was not required to launch an administrative challenge prior to filing suit; that NIH improperly asserted FOIA Exemptions 4, 5, and 6, with respect to certain documents; and that NIH did not properly segregate non-exempt portions of various documents. Pl.'s Cross Mot. for Summ. J. at 5-27.*fn1 On May 4, 2005, Defendants filed [17] Defendants' Second Motion for Partial Summary Judgment, arguing that since Defendants had released the 23 responsive pages initially referred to the USAF to Plaintiff, Defendants should be granted summary judgment with respect to said pages. All motions have been fully briefed. After considering the pending motions, the filings related thereto, and the relevant statutes and case law, the Court shall GRANT in part and DENY in part [11] Defendants' Motion for Partial Summary Judgment; GRANT in part and DENY in part [13] Plaintiff's Cross Motion for Summary Judgment; and GRANT [17] Defendants' Second Motion for Partial Summary Judgment. Defendants shall produce the following information to Plaintiff: 1) incentive payments to the contractor; 2) answers to NIH questions in the revised contract proposal; 3) the withheld NIH contract questions; and 4) redactions of the square footage of the APF, daily inventories of animals, floor plans and wiring diagrams, specific locations of individual animals, locations of animal records and specimens, numbers of rooms containing equipment, the numbers of animals in specific holding areas, and the square footage of specific areas. Defendants shall also provide Plaintiff with properly-segregated, redacted versions of Documents 14 and 15 as listed in the Vaughn Index, including the subject matter of the invoices and e-mails at issue. Defendants shall search APF for the requested clinical chimpanzee files, using a search cut-off date not earlier than March 31, 2007, and informing Plaintiff of said cut-off date. Defendants shall further grant Plaintiff a public interest fee waiver immediately.

I. BACKGROUND

After reviewing the Parties' statements of facts and the relevant documents in this case, the Court has determined that the following facts are not in dispute (and will cite documents attached to the Complaint when applicable for ease of reference). By letter dated January 20, 2004, Plaintiff submitted a FOIA request to NIH's component, the National Center for Research Resources (NCRR), for documents relating to the Alamogordo Primate Facility (APF) and the chimpanzees maintained therein. Compl., Ex. 1 (FOIA Request). APF is a government-owned and contractor-operated facility in New Mexico. Id. The chimpanzees located at APF are owned by the NIH and are being maintained under a contract with Charles River Laboratories, Inc. (CRL), a publicly held animal research company. Id.

Plaintiff requested the following documents: [Operational Records] . . .

1. The NIH's Requests for Proposals ("RFP") and all amendments that led to the award of the current contract to CRL to operate the APF. . . .

2. The proposals and all amendments submitted by CRL in response to the RFP for the APF contract.

3. The current APF contract and all amendments between the NIH and CRL, as well as all progress reports, and any other reports, submitted by CRL that are required by the contract. . . .

4. All records relating to the NIH's decision to award the APF contract to CRL.

5. All internal APF records sent or received by any current of former APF employees regarding any aspect of the clinical care, treatment, well-being, husbandry, enrichment and/or psychological well-being, diagnosis, monitoring, observation, cause(s) of death, surveillance and/or adequacy of any of the chimpanzee-specific records described later in this request.

6. All APF records relating to the availability of controlled substances such as euthanasia drugs . . . .

7. All APF records relating to availability of ultrasound machine(s) and any other equipment or resources necessary for the care of chimpanzees . . . .

8. All records related to the APF Institutional Animal Care and Use Committee . . . .

9. All records related to the APF Advisory Board . . . .

10. All records related to any internal investigations conducted by CRL related to any aspect of chimpanzee care, diagnosis, treatment, enrichments, etc., and/or compliance with conditions of the contract between CRL and the NIH to operate the APF.

11. All records related to any internal complaints, concerns, etc. made by any current or former APF employees regarding any aspect of the clinical care, treatment, well-being, observation, monitoring, diagnosis, enrichment and/or psychological well-being, husbandry, cause(s) of death, surveillance and/or adequacy of any of the chimpanzee-specific records described later in this request.

12. All records related to any meetings of current or former APF staff that in any way addressed any aspect of the clinical care, treatment, well-being, observation, monitoring, diagnosis, enrichment and/or psychological well-being, husbandry, cause(s) of death, surveillance and/or adequacy of any of the chimpanzee-specific records described later in this request . . . .

13. All records relating to internal complaints, comments, questions, concerns, etc. regarding the clinical competence, training and/or experience of any veterinarians ever employed by CRL at the APF.

14. All records relating to veterinary turnover at the APF, including but not limited to the resumes/C.V.'s of any and all veterinarians ever employed by CRL at the APF, amount of clinical chimpanzee experience at the time of hire, etc. [Chimpanzee-Specific Records] . . .

15. All chimpanzees who have died since CRL took over operation of the APF, including those who have been euthanized.

16. All chimpanzees who have received intensive care and/or emergency care since CRL took over operation of the APF.

17. The 14 chimpanzees whom the Coulston Foundation transferred to the NIH on April 9, 2002 and placed under the care of the APF. . . .

Id. at 2-5. Plaintiff accompanied its FOIA request with a request for a news media fee waiver, arguing that because of IDA's "efforts to gather and disseminate news to the public" regarding animal welfare issues, IDA qualified for a waiver of fees as a "news media entity," pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II) and 45 C.F.R.§ 5.41. Id. at 5-6. Additionally, Plaintiff requested a public interest fee waiver on the grounds that, pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) and 45 C.F.R. § 5.45, IDA's request "is not in the commercial interest of IDA or any of its members, and disclosure of the requested information is likely to significantly contribute to public understanding of the operations and activities of the NIH." Id. at 6-10. In support of Plaintiff's public interest fee waiver request, Plaintiff explained its intended use for the requested documents, how it planned to disseminate the records to the public, and provided examples of how IDA had previously disseminated records obtained under the FOIA to the public. Id.

On March 3, 2004, NIH sent Plaintiff a response letter, acknowledging Plaintiff's FOIA request and denying Plaintiff's request for a public interest fee waiver. Compl., Ex. 2 (3/3/04 NIH's Denial of IDA's Fee Waiver Request (hereinafter, "NIH's Fee Waiver Denial")) at 1. NIH stated that IDA "ha[d] not demonstrated that release of the requested information is primarily in the public interest, or that the requested information will be widely distributed." Id. Additionally, NIH alleged that IDA failed to show "a unique capability to educate the public beyond [IDA's] constituency and similar groups that have the same concerns." Id. NIH also stated that it would not decide whether IDA qualified for a news media fee waiver because NIH did not anticipate any search fees. Id. NIH informed IDA of its right to appeal the denial of waiver and how to submit an appeal. Id.at 1-2.

Plaintiff administratively appealed NIH's denial of the public interest waiver on March 12, 2004, emphasizing IDA's "ability to interpret information and disseminate it widely as well as to educate the public at large about the NIH's operations and activities in general and at the facility at issue in this request in particular." Compl., Ex. 3 (3/12/2004 IDA's FOIA Appeal of NIH's Fee Waiver Denial (hereinafter, "IDA's Fee Waiver Appeal")) at 1-2. NIH responded to IDA's appeal on May 26, 2004, upholding NIH's denial of the public interest fee waiver, and informing IDA of its right to seek judicial review of NIH's final decision. Compl., Ex. 4 (5/26/04 NIH's Review of IDA's FOIA Appeal (hereinafter, "NIH's Denial of Fee Waiver Appeal")) at 1-2.

By letter dated March 5, 2004, NIH addressed Plaintiff's FOIA request relating to the APF and chimpanzee-specific records. Compl., Ex. 5 (3/5/04 NIH's Response to IDA's FOIA Request (hereinafter, "March 5, 2004 Response")). NIH agreed to send IDA "all material consistent with the exemptions recognized by the FOIA," and explained that its disclosures would follow HHS's policy of "expung[ing] confidential commercial or financial information, evaluative material, EIN numbers, and personal information such as social security numbers, individual salaries and names of and identifying information about staff who are not listed as key personnel on the contract." Id. at 1. NIH also informed IDA that if IDA objected to the redaction of this information, IDA could write to NCRR's Freedom of Information Coordinator, who would consult with the NIH Freedom of Information Officer. Id.

On July 23, 2004, NIH partially responded to Plaintiff's FOIA request by releasing 187 pages of documents, including the contract awarded to CRL to operate the APF, portions of the technical proposal that were incorporated into the contract, and modifications to the contract.

Compl., Ex. 6 (7/23/04 Partial Response to IDA's FOIA Request (hereinafter, "July 23, 2004 Response")) at 1. NIH informed Plaintiff that this disclosure followed the HHS policy of redacting "cost and fixed fees; estimated costs; fringe benefits; labor/overhead rates; line item costs; negotiated costs; EIN number; names of non-key personnel; number of personnel; resumes other than that of the principal investigator; names and information on subcontractors and consultants; and floor plans." Id. NIH added that, as part of NIH policy, it also withheld "the building number of structures that house animals." Id. NIH also informed IDA that if IDA objected to NIH's omissions, IDA could write to NCRR's Freedom of Information Coordinator, who would then consult with NIH's Freedom of Information Officer. Id. Finally, NIH stated that it would continue to process the remaining documents that IDA had requested. Id.

Plaintiff filed its Complaint with this Court on September 10, 2004, seeking the completion of the processing of its FOIA request, a full release of documents, and an order granting IDA its requested public interest fee waiver.*fn2 Compl. at 6. On November 5, 2004, NIH sent Plaintiff a letter stating that in NIH's July disclosure, it released 187 pages instead of 188 documents, and that certain information was redacted in error. Defs.' Mot. for Part. Summ. J., Ex. A (11/5/04 NIH's Letter Regarding Erroneous Redactions (hereinafter, "November 5, 2004 Response")) at 1. NIH enclosed copies of the re-released and properly redacted documents. Id. at 1-2. NIH also informed Plaintiff that NIH would continue to process the other documents that IDA had requested. Id. at 2.

On November 29, 2004, NIH released an additional 123 pages of records to Plaintiff, including the solicitation letters sent to CRL, the Justification for Other than Full and Open Competition, certain site visit reports, and various records related to the composition of the Institutional Animal Care and Use Committee. Defs.' Mot. for Part. Summ. J., Ex. A (11/29/04 Partial Response to IDA's FOIA Request (hereinafter, "November 29, 2004 Response")) at 2. NIH informed IDA that, in accordance with HHS and NIH FOIA policy, certain information had been redacted from the released documents, including names of Institutional Animal Care and Use Committee members other than the Chairperson and the Institutional Veterinarian, names of unsuccessful offerors, estimated costs and labor rates, home addresses, telephone numbers, e-mail addresses, and names of non-key personnel. Id. NIH also stated that if IDA wanted to challenge the redaction of information, IDA could write to NCRR's FOI coordinator, who would consult with NIH's FOI officer. Id. NIH also stated that it would continue to process the other documents in response to IDA's request and would make further releases. Id.

On January 11, 2005, NIH released 710 pages of documents to Plaintiff, including APF Annual Reports, project schedules and monthly progress reports, source selection determinations, and miscellaneous records and correspondence. Defs.' Mot. for Part. Summ. J., Ex. A (1/11/05 Final Response to IDA's FOIA Request (hereinafter, "January 11, 2005 Response")) at 2-3. NIH informed Plaintiff that NIH had redacted certain information from these documents, including evaluations and opinions of NIH employees relating to the contractor, names, contact information and biographical information of subcontractors, vendors, and CRL non-key personnel, and room numbers and locations of animals. Id. Additionally, NIH stated that it had withheld 60 pages of records in their entirety that were responsive to IDA's request, and informed IDA that the search of NCRR files did not produce any records that were responsive to Plaintiff's Requested Items A5, A6, A11, A12, B3 and B4. Id.NIH indicated that its January 11, 2005 letter and document disclosure constituted NIH's final response to IDA's FOIA request, and that IDA had a right to appeal NIH's decision to deny records and NIH's finding that no records exist that are responsive to Plaintiff's Requested Items A5, A6, A11, A12, B3 and B4. Id.

NIH's January 11, 2005 Response also informed IDA that NIH had referred two pages of records that originated with the United States Department of Agriculture (USDA) and 23 pages that originated with the USAF "to the respective agencies for their review and determination of releasability." Id. at 2. NIH had referred these documents to the respective agencies on August 3, 2004 and November 24, 2004. Defs.' Statement of Material Facts Not in Genuine Issue 3/16/05 (hereinafter, "Defs.' Statement of Facts 3/16/05") ¶ 11. By letter dated March 15, 2005, the USDA released to Plaintiff the two referred pages. Id. ¶ 12. On April 14, 2005, the USAF approved the release of some of the referred documents, but Defendants allege that they were unable to coordinate with the USAF the documents' final release. Defs.' Statement of Material Facts Not in Genuine Issue 5/4/05 (hereinafter, "Defs.' Statement of Facts 5/4/05") ¶¶ 4, 5. On May 4, 2005, Defendants released the 23 pages to IDA. Id. ¶ 5.

On March 16, 2005, Defendants filed a Motion for Partial Summary Judgment on the following grounds: (1) Plaintiff failed to exhaust administrative remedies by failing to administratively challenge any aspect of its FOIA request and appealing only NIH's denial of a public interest fee waiver; (2) Defendants conducted an adequate search in response to Plaintiff's FOIA request; (3) Defendants properly applied FOIA Exemptions 4, 5, and 6, properly withholding certain information as set forth in an attached Vaughn index; (4) Defendants' referral of documents to USDA and USAF was reasonable; (5) no reasonably segregable, non-exempt portions of any document have been withheld; and (6) Defendants properly denied Plaintiff's request for a public interest fee waiver. Defs.' Mem. for Part. Summ. J. at 10-33.

On April 13, 2005, Plaintiff filed an Opposition to Defendants' Motion for Partial Summary Judgment as well as a Cross-Motion for Summary Judgment, in which Plaintiff argued that (1) Defendants' search for records was inadequate; (2) Defendants wrongfully denied Plaintiff's public interest fee waiver request; (3) Plaintiff was not required to launch an administrative challenge prior to filing suit; (4) NIH improperly asserted FOIA Exemptions 4, 5, and 6, with respect to certain documents; and (5) NIH did not properly segregate non-exempt portions of various documents. Pl.'s Cross Mot. for Summ. J. at 5-27. On May 4, 2005, Defendants filed [17] Defendants' Second Motion for Partial Summary Judgment, arguing that since Defendants had released the 23 responsive pages initially referred to the USAF to Plaintiff, Defendants should be granted summary judgment with respect to said pages. All motions have been fully briefed.

II. LEGAL STANDARD

In reviewing a motion for summary judgment under the FOIA, the Court must conduct a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). "In the FOIA context, de novo review requires the court to 'ascertain whether the agency has sustained its burden of demonstrating that the documents requested are not "agency records" or are exempt from disclosure under the FOIA.'" Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003) (quoting Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998)).

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists only when there is sufficient evidence such that a reasonable juror could find for the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986). Furthermore, entry of summary judgment is mandated against a party if, after "adequate time for discovery and upon motion, [the party] fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986).

FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. Internal Revenue Serv., 2 F.3d 366, 369 (11th Cir. 1993); Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C. 1980). Under FOIA, all underlying facts and inferences are analyzed in the light most favorable to the FOIA requester; as such, only after an agency seeking it proves that it has fully "discharged its [FOIA] obligations" is summary judgment appropriate. Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). "The agency bears the burden of showing that its search was adequate" and in good faith. Tarullo v. Dep't of Defense, 170 F. Supp. 2d 271, 274 (D. Conn. 2001). At a minimum, a good faith search effort uses methods that can be reasonably expected to produce the information requested. See Ogelsby v. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) ("[T]he agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested.").

Congress enacted FOIA for the purpose of introducing transparency to government activities. See Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 88 (D.C. Cir. 1984). Congress remained sensitive, however, to the need to achieve balance between this objective and the vulnerability of "legitimate governmental and private interests [that] could be harmed by release of certain types of information." Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992). Accordingly, FOIA provides nine exemptions pursuant to which an agency may withhold requested information. 5 U.S.C. §§ 552(a)(4)(B), (b)(1)-(9). See Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998) (recognizing that "release of certain information may harm legitimate governmental or private interests" and noting exemptions allowing agencies to withhold requested documents). The agency must demonstrate the validity of any exemption that it asserts. 5 U.S.C. § 552(a)(2); Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993) ("Consistent with the purpose of the Act, the burden is on the agencyto justify withholding requested documents."). To satisfy this burden, the agency may provide a plaintiff "with a Vaughn index, which must adequately describe each withheld document, state which exemption the agency claims for each withheld document, and explain the exemption's relevance." Johnson v. Exec. Office for U.S. Att'ys, 310 F.3d 771, 774 (D.C. Cir. 2002); see also Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973) (requiring that this index be "adequate[ly] specific[] to assur[e] a proper justification by the governmental agency"). In addition, summary judgment may be granted on the basis of the agency's accompanying affidavits or declarations if they 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 ...


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