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National Whistleblower Center v. Department of Health and Human Services

United States District Court, District of Columbia

November 9, 2012


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David K. Colapinto, Stephen M. Kohn, Kohn, Kohn & Colapinto, LLP, Washington, DC, for Plaintiffs.

Marian L. Borum, U.S. Attorney's Office, Washington, DC, for Defendants.


JAMES E. BOASBERG, District Judge.

This represents the latest phase in the Freedom of Information Act battle between Plaintiffs— the National Whistleblower Center and six current and former employees of the Department of Health and Human Services— and Defendant HHS about access to records relating to the individuals' employment with that Agency. See, e.g., Nat'l Whistleblower Ctr. v. Dep't of Health and Human Servs., 849 F.Supp.2d 13 (D.D.C.2012); Nat'l Whistleblower Ctr. v. Dep't of Health and Human Servs., 839 F.Supp.2d 40 (D.D.C.2012). In this installment, HHS moves for partial summary judgment regarding a subset of documents withheld or redacted by HHS's Office of General Counsel (OGC) in response to Plaintiffs' FOIA requests. Defendant argues that the challenged records were properly withheld or redacted to protect: confidential commercial or financial information (FOIA Exemption 4), inter-agency or intra-agency records that would not be available by law to a party in litigation with the Agency (Exemption 5), and files that would constitute an unwarranted invasion of personal privacy if disclosed (Exemption 6).

Plaintiffs concentrate their fire on the Exemption 5 withholdings, arguing that HHS OGC cannot invoke this exemption where there is evidence of government misconduct. This Court determined that Plaintiffs had provided the requisite factual basis of such misconduct and ordered in camera review of the challenged documents to determine whether withholding was appropriate. Having now reviewed them, the Court finds that the documents in question do not reflect the sort of governmental impropriety necessary to defeat the legal privileges invoked by Defendant and were thus properly withheld or redacted under Exemption 5. As such, the Court will grant Defendant's Motion for Partial Summary Judgment.

I. Background

Plaintiffs Ewa Czerska, Paul Hardy, Julian Nicholas, Robert Smith, R. Lakshmi Vishnuvajjala, and Nancy Wersto commenced this litigation in 2010 to obtain records from HHS pertaining to their complaints about misconduct by the Federal Drug Administration and HHS in the improper approval of medical devices and HHS's retaliation against them for raising these whistleblower complaints. Between July 26 and November 16, 2010, all individual Plaintiffs, in concert with the National Whistleblower Center, submitted separate requests under FOIA, 5 U.S.C. § 552 et seq., and the Privacy Act, 5 U.S.C. § 552a et seq., for various records pertaining to their employment with HHS. See Sec. Am. Compl., ¶¶ 17, 51, 64, 102, 155, 168; Def.'s Mot., Declaration of Robert Eckert, ¶¶ 5-9. Different agency components treated the requests differently. The HHS OGC records at issue in this Motion were processed by the Freedom of Information/Privacy Acts Division under the supervision of Director Robert Eckert. See Eckert Decl., ¶¶ 1, 5.

Responding to each request, HHS released some documents in full, partially redacted some documents, and withheld other documents in their entirety pursuant to specified FOIA exemptions. See id., ¶¶ 11-17. Between February 2011 and April 2011, HHS released 2,710 pages in full or with redactions and withheld 1,008

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pages in response to the Smith request. See id. In May 2011, it released 567 pages in full or with redactions and withheld 247 pages in response to the Czerska request. See id., ¶ 12. That same month, an additional 329 pages were released in full or with redactions and 129 pages were withheld in response to the Nicholas request. See id., ¶ 13. And in March and April 2011, 437 pages were released in full or with redactions and 50 pages were withheld in response to the National Whistleblower Center request. See id., ¶ 15.

The withholdings and redactions at issue in this Motion rely upon FOIA Exemptions 4, 5, and 6. See id., ¶¶ 16-31. The records withheld pursuant to Exemption 4 contain " names and product identifying information of devices and the names and contact information of device manufacturers" submitted to the FDA to request approval to market. Id., ¶ 20. Exemption 5 was invoked to protect documents subject to the deliberative-process privilege, the attorney-client privilege, and the attorney work-product doctrine. See id., ¶¶ 21-27. Finally, Exemption 6 was asserted to protect identifying information about particular individuals, ranging from phone numbers to personal opinions or criticisms of co-workers of the individual plaintiffs. See id., ¶ 29.

The Agency maintains that " all reasonably segregable, non-exempt information has been released." Id., ¶ 32. Documents withheld in their entirety

consisted primarily of (1) drafts of documents before they were finalized; (2) OGC-generated documents to assist agency attorneys in preparing for litigation with the individual plaintiffs; and (3) internal FDA documents concerning pending device reviews of manufacturers' devices or FDA's subcontractor's recommendations to FDA about the alleged hostile work environment at CDRH.

Id. In withholding these documents, the Agency determined that " there was no reasonably segregable material or non-exempt information amounted to essentially meaningless words and phrases." Id.

Defendant moved for partial summary judgment pertaining to the OGC documents on May 9, 2012. See ECF No. 91. Plaintiffs opposed Defendant's Motion and cross-moved for discovery pursuant to Rule 56(d), seeking additional information to support their challenge to the Agency's Exemption 5 withholdings under the government-misconduct exception. See ECF No. 108. These matters are now ripe for decision.

II. Legal Standard

Summary judgment may be granted if " the movant shows that 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). " A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record." Fed.R.Civ.P. 56(c)(1)(A). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). " [A] material fact is ‘ genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" on an element of the claim. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505. Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits,

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declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d ...

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