United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. MEHTA UNITED STATES DISTRICT JUDGE
the court are the parties' cross-motions for summary
judgment in this action brought under the Freedom of
Information Act (“FOIA”). See Defs.'
Mot. for Summ. J., ECF No. 20 [hereinafter Defs.' Mot.];
Pl.'s Cross-Mot. for Summ. J., ECF No. 21 [hereinafter
Pl.'s Cross-Mot.]. The court has reviewed the
parties' briefs and accompanying materials and finds that
this matter cannot be resolved on the present record. As
discussed further below, Defendants' reliance on FOIA
Exemptions 7(C) and 7(D), see 5 U.S.C. §
552(b)(7)(C), (D), to withhold certain law enforcement
records raises a threshold question: Whether the source of
those records is an entity or an individual. Because
Defendants' affiants do not answer that question, the
court cannot assess whether the Government's withholdings
are appropriate at this time. As a result, the court denies
the parties' Motions without prejudice and will allow
Defendants to submit additional information concerning the
identity of the confidential source.
King & Spalding LLP (“Plaintiff”) filed three
separate FOIA requests with Defendants U.S. Department of
Health and Human Services and U.S. Department of Justice
(“Defendants”) for documents concerning
Plaintiff's client, Abiomed, Inc., that Defendants
received from an anonymous source between January 1, 2012,
and October 31, 2012. See Defs.' Mot. at 3-8
[hereinafter Defs.' Stmt. of Material Facts],
¶¶ 2, 10, 14; Pl.'s Cross-Mot. at 3-8
[hereinafter Pl.'s Stmt. of Material Facts], ¶¶
2, 10, 14. Plaintiff suspects that Defendants'
receipt of that information led to a federal criminal
investigation into whether Abiomed was engaged in
off-labeling marketing practices, i.e., promoting drugs for
uses outside of those approved by the U.S. Food and Drug
Administration. See Pl.'s Cross-Mot. at 11-46
[hereinafter Pl.'s Mem.], at 17. Plaintiff believes one
of Abiomed's competitors in the pharmaceutical industry,
Maquet, may be the Government's anonymous source.
Id. at 32-33.
response to Plaintiff's FOIA requests, Defendants
produced some documents, but withheld others. See
Defs.' Stmt. of Material Facts ¶¶ 6, 11, 15-16;
Pl.'s Stmt. of Material Facts ¶¶ 6, 11, 15-16.
Specifically, Defendants withheld, in full, 67 pages
containing responsive information that generally falls into
two categories: (1) “the names of government personnel,
the name of an attorney representing [the] unnamed source and
the names of third parties who appear in the documents
[provided by the unnamed source]” under Exemption 7(C),
and (2) certain material that could reveal the identity of
the Government's unnamed source under Exemption 7(D).
See Defs.' Reply in Supp. of Defs.' Mot, ECF
No. 25 [hereinafter Defs.' Reply], at 13, 17- 19;
Defs.' Stmt. of Material Facts ¶¶ 15-16;
Pl.'s Stmt. of Material Facts ¶¶ 15-16;
Defs.' Mot. at 9-28 [hereinafter Defs.' Mem.], at
22-27; Pl.'s Mem. at 17. The parties dispute whether FOIA
Exemptions 7(C) and 7(D) can be properly used to
withhold-either in full or in part-those two categories of
materials. See Defs.' Mem. at 23-27;
Pl.'s Mem. at 24-38.
court cannot, however, resolve that dispute on the present
record. Exemption 7(C) protects from disclosure
“records or information compiled for law enforcement
purposes, but only to the extent that the production of such
law enforcement records or information . . . could reasonably
be expected to constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7)(C). To determine
whether the release of information would constitute an
“unwarranted invasion of privacy, ” the court
must balance “the privacy interests that would be
compromised by disclosure against the public interest in
release of the requested information.” Davis v.
U.S. Dep't of Justice, 968 F.2d 1276, 1281 (D.C.
Cir. 1992). Exemption 7(D), by contrast, protects from
disclosure “records or information compiled for law
enforcement purposes . . . [that] could reasonably be
expected to disclose the identity of a confidential source .
. . and, in the case of [records] or information compiled by
a criminal law enforcement authority . . . information
furnished by [the] source.” 5 U.S.C. §
552(b)(7)(D). “Unlike Exemption 7(C), Exemption 7(D)
does not require balancing, ” but does require the
Government to “present probative evidence that the
source” provided information to the Government under
either an express or implied assurance that its identity
would remain confidential. Citizens for Responsibility
& Ethics in Wash. v. U.S. Dep't of Justice, 746
F.3d 1082, 1101 (D.C. Cir. 2014) (internal quotation marks
case, the applicability of both exemptions may turn on
whether the source that supplied the Government with
information about Abiomed is an entity or an individual.
Plaintiff has produced some evidence suggesting that the
source may have been persons acting on behalf of one of
Abiomed's rival companies, Maquet. See Pl.'s
Reply in Supp. of Pl.'s Cross-Mot., ECF No. 27, Ex. A,
ECF No. 27-1 (Affidavit of Associate General Counsel of
Abiomed), ¶ 3 (attesting that he met with a former
Maquet executive who admitted to participating in a plan
“to submit complaints against Abiomed to the Department
of Justice in the hopes of sparking a government
investigation”). If Plaintiff is correct that the
source is an entity, then the materials the entity supplied
cannot be withheld under Exemption 7(C) based solely on the
company's interest in nondisclosure. The Supreme Court
has clearly held that the protection of “personal
privacy” under Exemption 7(C) “does not extend to
corporations.” FCC v. AT&T, 562 U.S. 397,
409-10 (2011). The identity of the source also impacts the
Exemption 7(D) calculus. The Supreme Court has stated that,
in evaluating whether an anonymous source provided
information under an implied assurance of confidentiality,
courts should take into account whether that source is an
“individual” or an “institution.”
U.S. Dep't of Justice v. Landano, 508 U.S. 165,
176 (1993). Indeed, in Landano, the Court suggested
that an implied assurance of confidentiality may be more
difficult to establish in cases where a “private
institution[, ]” as opposed to an individual,
cooperates in a criminal investigation. See id.
Thus, absent more information about whether the
Government's anonymous source is an entity or an
individual, the court cannot evaluate the propriety of
nondisclosure under Exemption 7(C) or Exemption 7(D).
clear, the court does not mean to suggest that, if an entity
is the source, no record or portion of a record may be
withheld. For instance, the Government still may seek to
redact, under Exemption 7(C), “the names of government
personnel, the name of an attorney representing [the] unnamed
source and the names of third parties who appear in the
documents [provided by the unnamed source].” Defs.'
Reply at 8. Such withholdings, however, will raise both
factual and legal questions that the parties must address.
See Stern v. FBI, 737 F.2d 84, 91-94 (D.C. Cir.
1984); see also Beck v. U.S. Dep't of Justice,
997 F.2d 1489, 1493-94 (D.C. Cir. 1993). For example, if the
source is an entity, does the outside lawyer acting on behalf
of the source possess a personal privacy interest against
disclosure of his or her identity, or does the lawyer lack a
privacy interest because he or she is in fact acting on
behalf of an entity that itself has no such interest?
same question pertains to an executive or employee who may be
acting on behalf of the entity in providing information to
the Government. By contrast, the identity of the source would
likely have no impact on the privacy interests of Government
personnel involved in the investigation of Abiomed or
third-party individuals whose names happen to appear in the
responsive records. See Schrecker v. U.S. Dep't of
Justice, 349 F.3d 657, 666 (D.C. Cir. 2003). As to those
persons, the standard public-private interest balancing
required under Exemption 7(C) would apply. The parties should
consider these distinctions in their next round of briefing.
for the foregoing reasons, the court denies both parties'
Motions for Summary Judgment without prejudice. No later than
September 22, 2017, the parties shall file a Joint Status
Report that addresses (1) the Government's knowledge of
the source's identity as an entity or individual, and (2)
whether the parties intend to renew their cross-motions for
summary judgment and, if so, on what issues. The court will
set a schedule for supplemental briefing, if needed, upon
receipt of the Joint Status Report.
 Pin cites to the parties' briefs
and accompanying materials correspond to the page number
generated by ECF.
 The Government also invokes Exemption
6 to justify its withholdings but, in light of the fact that
“‘Exemption 7(C) is more protective of privacy
than Exemption 6' and thus establishes a lower bar for
withholding material, ” the court need only consider
here Defendants' reliance on Exemption 7(C). See Am.
Civil Liberties Union v. U.S. Dep't of Justice, 655 F.3d
1, 6 (D.C. Cir. 2011) ...