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American Chemistry Council, Inc. v. U.S. Dept. of Health and Human Services

United States District Court, District of Columbia

February 13, 2013

AMERICAN CHEMISTRY COUNCIL, INC., Plaintiff,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.

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[Copyrighted Material Omitted]

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Kent A. Yalowitz, New York, NY, Blake A. Biles, Washington, DC, for Plaintiff.

Karen Patricia Seifert, United States Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, District Judge.

In November 2011, Plaintiff American Chemistry Council submitted a Freedom of Information Act request to a division of the Department of Health and Human Services. ACC sought records pertaining to a federally funded study that had considered the potential health effects of exposure to formaldehyde. The study's findings had led HHS to elevate formaldehyde's carcinogenic status in its biennial Report on Carcinogens. Unhappy with HHS's response to its FOIA request, Plaintiff then brought this suit alleging that Defendants' search of their records was inadequate and that they improperly refused to request research data from the study's authors. ACC seeks relief under FOIA and the Administrative Procedure Act, as well as a writ of mandamus.

Defendants— HHS and three of its component agencies— now move to dismiss under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). Because the only research data sought from the authors is publicly available, the Court will grant Defendants' Motion on that issue. The Court, however, agrees with ACC that it is premature to conclude that Defendants performed an adequate search of their own records. Finally, because FOIA already provides sufficient relief, the Court will dismiss Plaintiff's alternative claims under the APA and for mandamus.

I. Background

A. Report on Carcinogens

In 1978, Congress ordered HHS to begin publishing " a biennial report which contains ... a list of all substances ... [that] are known to be carcinogens or may reasonably be anticipated to be carcinogens and ... to which a significant number of persons ... are exposed [and] ... information concerning the nature of such exposure." 42 U.S.C. § 241(b)(4)(A)-(B); see Community Mental Health Centers Extension Act of 1978, Pub.L. No. 95-622, § 262(10), 92 Stat. 3412, 3435. Pursuant to that congressional mandate, a component entity of HHS has subsequently published twelve " Report[s] on Carcinogens" (RoC). See About the Report on Carcinogens, Nat'l Toxicology Program, http:// ntp. niehs. nih. gov/? objectid= 03 C 9 B 512- ACF 8- C 1 F 3- ADBA 53 CAE 848 F 635 (last updated Sept. 7, 2012) (" The 12th RoC, the latest edition, was published on June 10, 2011." ).

Formaldehyde, " a colorless, flammable gas that is used in aqueous solution to manufacture building materials and many household products," was first listed in the second edition of the RoC. See Compl., ¶¶ 9-10; Nat'l Toxicology Program, Dep't of Health & Human Servs., Report on Carcinogens 195 (12th ed. 2011) (" 12th RoC " ). For the ensuing thirty years, the Report classified the substance in a lesser carcinogenic category— namely, " reasonably anticipated to be a human carcinogen." See 12th RoC at 195. The 12th RoC, however, upgraded it to the more severe category of " known to be a human carcinogen." See id. In doing so, the report cited, inter alia, Luoping Zhang et al., Occupational Exposure to Formaldehyde, Hematoxicity, and Leukemia-Specific Chromosome Changes in Cultured

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Myeloid Progenitor Cells, 19 Cancer Epidemiology, Biomarkers & Prevention 80 (2010) (Zhang Study). See id. at 195, 197-200. The Zhang Study is a published scientific research article that was funded, at least in part, by federal grants disbursed by Defendants. Compl., ¶¶ 5, 14.

B. OMB Circular A-110

The relationship between FOIA and federally funded grantees is governed in part by the Shelby Amendment. This 1999 legislation directed the Office of Management and Budget to amend its Circular A-110— its full title is " Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations" — " to require Federal awarding agencies to ensure that all data produced under an award will be made available to the public through the procedures established under [FOIA]." Omnibus Consol. & Emergency Supplemental Appropriations Act for the Fiscal Year 1999, Pub. L. No. 105-277, 112 Stat. 2681-495 (1998). OMB, in response, revised Circular A-110 to reflect its current form. It states, in relevant part:

[I]n response to a [FOIA] request for research data relating to published research findings produced under an award that were used by the Federal Government in developing an agency action that has the force and effect of law, the Federal awarding agency shall request, and the recipient shall provide ... the research data so that they can be made available to the public through the procedures established under the FOIA.

OMB Circular A-110 § __.36(d)(1) (emphasis added). HHS has since codified Circular A-110 in the Code of Federal Regulations. See 45 C.F.R. § 74.36(d)(1)-(2).

C. Plaintiff's FOIA Request

On November 7, 2011, ACC's Assistant General Counsel submitted a FOIA request for " all Records related to [the Zhang Study]," including any records related to the federal grants that provided funding to the study. Compl., Exh. 1 (FOIA Request) at 1. Plaintiff specifically demanded three categories of documents: (1) " Records related to the protocol and methodology for conducting the [Zhang] Study" ; (2) " Records related to the information and data obtained regarding the [Zhang] Study subjects" ; and (3) " Records related to any analyses, results, ... findings and conclusions" of the Zhang Study. Id. at 1-2. Under item 2, Plaintiff sought:

2. All Records related to the information and data obtained regarding the Study subjects. These include all Records concerning:
a. Original questionnaires administered to Study subjects by trained interviewers requesting such information as occupational history, environmental exposures, medical history and current medications, and past and current tobacco and alcohol use.
b. Spreadsheets or other Records that were developed in order to summarize and/or analyze the information collected as part of the questionnaires administered to each Study subject.
c. Records identifying the specific factory at which each Study subject was employed.
d. Records identifying the specific Chinese or Western medicines used by each Study subject.
e. Records containing the laboratory analytical results from the exposure ...

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