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King & Spalding, LLP v. U.S. Department of Health and Human Services

United States District Court, District of Columbia

September 7, 2018

KING & SPALDING LLP, Plaintiff,
v.
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Amit P. Mehta United States District Judge.

         I. INTRODUCTION

         This case concerns three Freedom of Information Act (“FOIA”) requests submitted by Plaintiff King & Spalding LLP to Defendants U.S. Department of Health and Human Services (“HHS”) and U.S. Department of Justice (“DOJ”) (collectively “Defendants”). The court already has ruled on one round of summary judgment motions and, at this stage in the litigation, the only remaining issues pertain to the FOIA requests directed to DOJ. Specifically, Plaintiff challenges DOJ's search for responsive records, as well as its withholding of certain documents under Exemptions 6, 7(C), and 7(D).

         Before the court are the parties' renewed cross-motions for summary judgment. Upon review of the parties' briefs and the present record, the court grants in part and denies in part Defendants' Renewed Motion for Summary Judgment and Plaintiff's Renewed Cross-Motion for Summary Judgment.

         II. BACKGROUND

         A. Plaintiffs FOIA Requests

         In 2012, the United States Attorney's Office for the District of Columbia (“USAO-DC”) initiated a criminal and civil investigation of Abiomed, Inc., a medical device company. See Pl.'s Cross-Mot. for Summ. J., ECF No. 21 [hereinafter Pl.'s Cross-Mot.], Pl.'s Statement of Undisputed Material Facts [hereinafter Pl.'s Stmt.], ¶¶ 36-37. The investigation centered on marketing and labeling practices for a particular medical device, Impella® 2.5, and ended three years later without any enforcement action. See Id. The investigation may have commenced when an anonymous source, acting through a private lawyer, disclosed records pertaining to Abiomed to the USAO-DC. See Pl.'s Cross-Mot. at 17[1]; cf. Defs.' Mot. for Summ. J., ECF No. 20 [hereinafter Defs.' Mot.], Decl. of Tricia Francis, ECF No. 20-2 [hereinafter Francis Decl.], ¶¶ 13-15, 18; Defs.' Combined Opp'n to Cross-Mot. & Reply in Supp. of Mot. for Summ. J., ECF No. 25 [hereinafter Defs.' Initial Reply], Second Decl. of Tricia Francis, ECF No. 25-2 [hereinafter Second Francis Decl.], Corrected & Suppl. Vaughn Index for EOUSA, ECF No. 25-2, at 17-26 [hereinafter EOUSA Vaughn Index]. Abiomed suspects that one of its competitors, Maquet, is the unnamed source. See Pl.'s Cross-Mot. at 32-33.

         After the investigation closed, Abiomed sought to learn about how it started. On April 14, 2016, counsel for Abiomed, Plaintiff King & Spalding LLP, filed three separate FOIA requests with HHS and two subcomponents of DOJ: the Civil Division and the Executive Office for United States Attorneys (“EOUSA”). See Compl., ECF No. 1, ¶¶ 9-11; Defs.' Mot., Defs.' Statement of Material Facts Not in Genuine Dispute [hereinafter Defs.' Stmt.], ¶ 1; Pl.'s Stmt. ¶ 1. In each request, Plaintiff sought documents concerning Abiomed. See generally Defs.' Stmt. ¶¶ 2, 10, 14; Pl.'s Stmt. ¶¶ 2, 10, 14. Plaintiff asked for “[a]ll documents between January 1, 2012 and October 31, 2012, provided to any [federal agency] from any individual, corporation, partnership, or other private party other than Abiomed, Inc.” that “concern[ed], discuss[ed], or refer[red] to Abiomed” or “related . . . to the issuance of a Health Insurance Portability and Accountability Act subpoena issued by the [USAO-DC] to Abiomed.” Defs.' Stmt. ¶¶ 10, 14; see Pl.'s Stmt. ¶¶ 10, 14.[2]

         As discussed, Plaintiff no longer challenges the response it received from HHS; the only outstanding issues in this matter pertain to the FOIA requests directed to the DOJ Civil Division and the EOUSA. See Joint Status Report, ECF No. 29 [hereinafter JSR], ¶ 3.

         1.Civil Division Request

         The Civil Division responded to Plaintiff's FOIA request by letter dated June 17, 2016. See Defs.' Stmt. ¶ 11; Pl.'s Stmt. ¶ 11. The letter explained that the Civil Division had located 49 pages of potentially responsive documents and had referred those documents to the EOUSA for direct response, but that a portion of the documents were protected from disclosure by court seal. Defs.' Stmt. ¶ 11; Pl.'s Stmt. ¶ 11. The letter also advised Plaintiff that it could administratively appeal the Civil Division's response within 60 days. Defs.' Stmt. ¶ 12; Pl.'s Stmt. ¶ 12.

         Plaintiff took no action in response to the June 17, 2016, letter that it received from the Civil Division. Defs.' Stmt. ¶ 13; Pl.'s Stmt. ¶ 13. According to Plaintiff, it could not have “appealed” the letter because the letter “did not state any determination that the Civil Division was not complying with the FOIA request or any reasons for a decision not to comply” and therefore did not constitute a “final response” from the agency. See Pl.'s Stmt. ¶ 13.

         On December 23, 2016, from the records it received from the Civil Division, EOUSA released 27 pages in full and withheld 16 pages in full. See Defs.' Stmt. ¶ 16; Pl.'s Stmt. ¶¶ 16, 35. According to Defendants, the 16 pages withheld in full are duplicates of documents that EOUSA withheld in full in response to the FOIA request that Plaintiff submitted directly to EOUSA. Defs.' Stmt. ¶ 16; cf. Francis Decl. ¶ 11; Francis Decl., Attach. E. Thus, EOUSA withheld those pages on identical grounds as those discussed below. See Francis Decl. ¶ 11.

         2.EOUSA Request

         Simultaneous with the release of the Civil Division's records, EOUSA responded to the FOIA request directed to it, releasing 344 pages in full and withholding 51 pages in full pursuant to FOIA Exemptions 6, 7(C), and 7(D). Defs.' Stmt. ¶ 15; see Pl.'s Stmt. ¶ 15.[3] Thus, all told, EOUSA withheld in full 67 pages of responsive material (51 pages responsive to the EOUSA request and 16 pages responsive to the Civil Division request). See Francis Decl., Attachs. D-E. The undisclosed information 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[s] [6 and] 7(C), and (2) certain material that could reveal the identity of the Government's unnamed source under Exemption 7(D).” See King & Spalding, LLP v. U.S. Dep't of Health & Human Servs., 270 F.Supp.3d 46, 47 (D.D.C. 2017) (cleaned up); see also Defs.' Stmt. ¶¶ 15-16; Pl.'s Stmt. ¶¶ 15- 16.

         On April 5, 2017, after the parties filed their initial cross-motions for summary judgment, EOUSA released four additional documents consisting of email communications, which the agency located after conducting a supplemental search in March 2017. See Defs.' Initial Reply at 7, 20; Second Francis Decl. ¶ 3; EOUSA Vaughn Index at 23-26 (documents 13-16). As part of this supplemental release, EOUSA released 46 pages in full and 33 pages in part, withholding any information that fell within the two aforementioned categories pursuant to Exemptions 6, 7(C), and 7(D). See Second Francis Decl., April 5, 2017 EOUSA Letter, ECF No. 25-2, at 9-11; EOUSA Vaughn Index at 23-26.[4] Plaintiff does not appear to challenge any of these redactions. See Pl.'s Reply in Supp. of Cross-Mot. for Summ. J., ECF No. 27 [hereinafter Pl.'s Initial Reply], at 5; see also Pl.'s Renewed Cross-Mot., ECF No. 33 [hereinafter Pl.'s Renewed Cross-Mot.], at 7 (seeking court order compelling Defendants to produce only those 67 pages of responsive information previously withheld in full).

         Separately, as part of the supplemental release, EOUSA also invoked Exemptions 4 and 5 to withhold certain information from several attachments to one of the four produced emails. See Defs.' Initial Reply at 21 (noting the withholding of attachments to an email labeled document 13, which included the U.S. Food and Drug Administration's (“FDA”) internal draft minutes of a meeting between Abiomed and FDA's Office of Compliance and proposed edits to those minutes, as well as an inspection report of Abiomed); see also Second Francis Decl. ¶ 10; Second Francis Decl., Decl. of Sarah Kotler, ECF No. 25-2, at 12-16 [hereinafter Kotler Decl.], ¶¶ 6-9; EOUSA Vaughn Index at 23-24 (document 13). In its first cross-motion for summary judgment, Plaintiff explained that it did not challenge the applicability of Exemptions 4 and 5, provided that Plaintiff was correct in its understanding that “the government is asserting Exemption 4 to protect confidential commercial information supplied by Abiomed to the government, and Exemption 5 to protect internal notes made by government lawyers that memorialize meetings held between Abiomed and the government.” Pl.'s Initial Reply at 17. Plaintiff reiterated this point in a Joint Status Report filed after the court denied both sides' initial cross-motions for summary judgment and asked Defendants to define the scope of the material withheld. See JSR ¶ 18. Defendants did not provide the requested clarification in their present motion for summary judgment, see Defs.' Renewed Mot. for Summ. J., ECF No. 32, Mem. in Supp. [hereinafter Defs.' Renewed Mot.], at 4, but Plaintiff did not press the issue further in its renewed cross-motion, see generally Pl.'s Renewed Cross-Mot. (incorporating by reference all previous arguments raised in initial briefing filed in support of summary judgment but failing to mention Exemptions 4 and 5). As the parties have not fully briefed the Exemption 4 and 5 withholdings, the court does not address them here. Instead, as directed below, the parties shall meet and confer regarding the scope of information withheld pursuant to Exemptions 4 and 5 and clarify whether Plaintiff intends to challenge those withholdings.

         B. Procedural Background

         Plaintiff brought this FOIA action on August 9, 2016, see Compl., and the parties filed cross-motions for summary judgment on February 7, 2017, and February 28, 2017, respectively, see Defs.' Mot.; Pl.'s Cross-Mot. In their initial cross-motions, the parties disputed, among other things: (1) Plaintiff's exhaustion of administrative remedies with respect to the Civil Division request, (2) the adequacy of EOUSA's search, (3) the applicability of FOIA Exemptions 6, 7(C), and 7(D) to the information withheld in response to both the Civil Division and EOUSA requests, and (4) EOUSA's segregability determination. See Defs.' Mot. at 15-28; Pl.'s Cross-Mot. at 24- 44.

         On September 6, 2017, the court denied the parties' motions without prejudice. See generally King & Spalding, LLP, 270 F.Supp.3d at 47-49. In doing so, the court only addressed a threshold question raised by the parties' dispute over the applicability of Exemptions 7(C) and 7(D): whether the source of the withheld records is an entity or an individual. See Id. The court observed that, as to Exemption 7(C), if the source is an entity, “then the materials the entity supplied [could not] be withheld . . . based solely on the company's interest in nondisclosure, ” because “the protection of personal privacy under Exemption 7(C) does not extend to corporations.” Id. at 48 (internal quotation marks omitted). Similarly, the court noted that the identity of the source impacted the Exemption 7(D) calculus, which requires the Government “to present probative evidence that the source provided information . . . under either an express or implied assurance that its identity would remain confidential, ” because an implied assurance of confidentiality may be more difficult to establish where the source is entity. See Id. at 48-49 (internal quotation marks omitted). Accordingly, the court denied the parties' initial cross-motions for summary judgment without prejudice, allowing Defendants to submit additional information concerning the source's identity. Id.

         On September 22, 2017, Defendants advised the court that they had no more information to offer about the identity of the confidential source. See generally JSR. Defendants reported that, “[b]ecause the source was not identified by the attorney who provided the material on the source's behalf, EOUSA does not know whether the source was an entity or an individual.” See Id. ¶ 5. Nevertheless, Defendants indicated that they intended to renew their motion for summary judgment with respect to their withholdings under Exemptions 6, 7(C), and 7(D), subject to one exception discussed below. See Id. ¶¶ 7-9.

         The parties renewed their cross-motions for summary judgment on November 2, 2017, and November 17, 2017, respectively. See generally Defs.' Renewed Mot.; Pl.'s Renewed Cross-Mot. In their renewed motions, both parties incorporate their previous arguments with respect to segregability, adequacy of the search, and exhaustion. See Defs.' Renewed Mot. at 4; Pl.'s Renewed Cross-Mot. at 19-21. The parties also advance similar arguments concerning the applicability of Exemptions 6, 7(C), and 7(D). See Defs.' Renewed Mot. at 5-15; Pl.'s Renewed Cross-Mot. at 9-19. Defendants qualify their earlier position in one respect, however. Because EOUSA does not know whether the source was an entity or an individual-and, correspondingly, does not know whether the source has a legally cognizable privacy interest-Defendants no longer rely on Exemptions 6 and 7(C) as independent bases to justify the complete withholding of records to protect the source's identity. See Defs.' Renewed Mot. at 13. But Defendants do continue to rely on Exemptions 6 and 7(C) to withhold the names and other identifying information of government personnel and third parties, including the private attorney who communicated with the Government on the source's behalf. See Id. at 13-15.

         Plaintiff, for its part, contends that Defendants cannot meet their burden to justify application of Exemption 7(D) in this case, largely for the same reasons stated in Plaintiff's initial motion for summary judgment. Cf. Pl.'s Renewed Cross-Mot. at 7-8, 10-18. Plaintiff also takes issue with Defendants' continued reliance on Exemptions 6 and 7(C) to withhold the name of the private attorney who represented the source, as well as the name of his or her law firm. See Id. at 18-19. Plaintiff is silent, however, as to Defendants' continued reliance on those exemptions to withhold the names of government personnel and third parties whose names may appear in the responsive records. See id.; Pl.'s Reply in Supp. of Renewed Cross-Mot. for Summ. J., ECF No. 37 [hereinafter Pl.'s Reply], at 9-10; see also Pl.'s Cross-Mot. at 24-33 (failing to address Defendants' explanation for withholding the names and identifying information of these individuals in initial round of summary judgment briefing).

         The parties' renewed cross-motions for summary judgment are now ripe for consideration.

         III. LEGAL STANDARD

         “Designed to facilitate public access to Government documents, [FOIA] requires federal agencies to disclose information to the public upon reasonable request unless the records at issue fall within specifically delineated exemptions.” Reporters Comm. for Freedom of Press v. FBI, 877 F.3d 399, 401 (D.C. Cir. 2017) (cleaned up). To prevail in a FOIA action, an agency must demonstrate that three requirements are met. See Sea Shepherd Conservation Soc'y v. IRS (“Sea Shepherd I”), 89 F.Supp.3d 81, 89-90 (D.D.C. 2015). First, the agency must “‘demonstrate the . . . adequacy of the search' for relevant documents.” Cable News Network, Inc. v. FBI, 293 F.Supp.3d 59, 68 (D.D.C. 2018) (alteration in original) (quoting Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982)). “Second, it must show that the withheld material ‘falls within one of nine statutory exemptions.'” Id. (quoting People for the Ethical Treatment of Animals v. Nat'l Institutes of Health, 745 F.3d 535, 540 (D.C. Cir. 2014)). Finally, “[e]ven when an exemption applies, the agency is obligated to disclose ‘[a]ny reasonably segregable portion of a record' after removing the exempt material.” Bartko v. U.S. Dep't of Justice, 898 F.3d 51, 62 (D.C. Cir. 2018) (second alteration in original) (quoting 5 U.S.C. § 552(b)).

         Most FOIA cases are appropriately resolved on motions for summary judgment. Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A court must grant summary judgment “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). A dispute is “genuine” only if a reasonable fact-finder could find for the nonmoving party, and a fact is “material” only if it is capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         “Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action' and directs the district courts to ‘determine the matter de novo.'” U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)). “The agency may carry that burden by submitting affidavits that ‘describe the justification for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'” Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice (“CREW”), 746 F.3d 1082, 1088 (D.C. Cir. 2014) (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009)); see also SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (imposing similar burden on agency to establish adequacy of search and explaining that agency affidavits must be “relatively detailed and non-conclusory” and “submitted in good faith” (internal quotation marks omitted)).

         IV. DISCUSSION

         The parties' renewed cross-motions for summary judgment present four issues: (1) whether EOUSA properly withheld responsive records pursuant to FOIA Exemptions 6, 7(C), and 7(D); (2) whether EOUSA adequately justified its efforts to segregate and release all non-exempt records; (3) whether Plaintiff was required to exhaust its administrative remedies with respect to the request directed to the DOJ Civil Division; and (4) whether EOUSA conducted an adequate search for responsive records. The court addresses each of these issues in turn.

         A. FOIA Exemptions

         Because Defendants invoke Exemption 7(D) to withhold in full the 67 pages of responsive information that Plaintiff seeks, the court begins its analysis with that exemption before addressing whether Defendants may rely on Exemptions 6 and 7(C) to withhold the identity of the lawyer and law firm that represented the source.

         1.Exemption 7(D)

         The 67 pages of responsive information withheld in full by EOUSA “were provided to the [USAO-DC] by a private attorney who represented an unidentified source in connection with an investigation by that Office into alleged criminal conduct by Abiomed.” Defs.' Renewed Mot. at 6 (citing Francis Decl. ¶ 18); accord Second Francis Decl. ¶¶ 2, 9. EOUSA contends that this information is protected from disclosure under Exemption 7(D) because its release “could reasonably be [expected] to disclose the identity of the ...


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