United States District Court, District of Columbia
MEHTA, UNITED STATES DISTRICT JUDGE
April 2016, Plaintiff King & Spalding LLP submitted
Freedom of Information Act (“FOIA”) requests to
the U.S. Department of Health and Human Services
(“HHS”) and the U.S. Department of Justice
(“DOJ”) (collectively “Defendants”),
seeking documents provided to the government by any person or
entity concerning Abiomed, Inc. Abiomed is a medical device
company represented by Plaintiff. The requests sought records
for the period between January and October 2012.
court already has ruled on two prior rounds of summary
judgment briefings. The only remaining questions are: (1)
whether the government must disclose the name of the law firm
that represented an anonymous source who, through counsel,
submitted information about Abiomed to the government, and
(2) whether the court should reconsider its prior ruling
permitting the government to withhold the names of the
attorneys who represented the source.
the court is Defendants' Motion for Summary Judgment as
to the first question and Plaintiff's combined Cross
Motion for Summary Judgment as to the first question and
Motion for Reconsideration as to the second. For the
following reasons, Defendants' Motion is denied, and
Plaintiff's Motion is granted in full.
court described the facts of this matter in its September
2018 decision, so it does not repeat them here at length.
See generally King & Spalding LLP v. United States
HHS, 330 F.Supp.3d 477 (D.D.C. 2018) [hereinafter
King & Spalding II]. To summarize, Plaintiff
King & Spalding LLC submitted three FOIA requests in
April 2016, seeking all documents received by either HHS or
DOJ from any outside person or entity (except Abiomed)
concerning Abiomed, between January 1 and October 31, 2012.
Id. at 483. The request followed a 2012
investigation by the U.S. Attorney's Office for the
District of Columbia of Abiomed centered on alleged off-label
marketing of a medical device. Id. at 482. The
investigation ended three years later without enforcement
action. Id. The investigation may have commenced
upon information provided from an anonymous source who
disclosed records through a private attorney. Id. at
482-83. Abiomed suspects that Maquet, one of its competitors,
was the source. Id. at 483.
initially released over 370 pages and withheld 67 pages in
full in response to Plaintiff's requests. Id. at
484. Defendants justified these withholdings under FOIA
Exemptions 6 and 7(C), which concern the privacy interests of
individuals identified in agency records, and 7(D), which
protects confidential sources. Id. Defendants made a
supplemental release in April 2017 of 46 pages in full and 33
pages in part. Id. Defendants again justified the
redactions under Exemptions 6, 7(C), and 7(D). Id.
The government also relied on Exemptions 4 and 5 to withhold
certain information from attachments to a produced email,
which Plaintiff ultimately would not challenge. Id.
at 485; Plaintiff's Combined Cross Mot. for Summ. J. and
Mot. for Reconsideration, ECF No. 52 [hereinafter Pl.'s
Mot.]; Pl.'s Facts, ECF No. 52 at 3-9 [hereinafter
Pl.'s Facts], ¶¶ 25-26.
filed its Complaint on August 9, 2016. See Compl.,
ECF No. 1. On September 6, 2017, the court denied both
parties' motions for summary judgment without prejudice
and held that the government had not sufficiently justified
its withholdings under Exemptions 7(C) and (D). See
generally King & Spalding, LLP v. United States Dep't
of HHS, 270 F.Supp.3d 46 (D.D.C. 2017) [hereinafter
King & Spalding I]. The court stated that
“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,
” and found that the government's failure to state
whether its anonymous source was an individual or entity
prevented the court from “evaluat[ing] the propriety of
nondisclosure.” Id. at 48-49. The court
provided Defendants an opportunity to supplement the record.
September 22, 2017, Defendants advised the court that they
had no additional information to offer as to whether the
confidential source was an individual or entity. See
Joint Status Report, ECF No. 29, ¶ 5. Nevertheless,
Defendants stated that they intended to renew their summary
judgment motion. See Id. ¶¶ 7-9.
court ruled on the parties' second round of cross-motions
for summary judgment on September 7, 2018. See generally
King & Spalding II, 330 F.Supp.3d 477. The court
held “that Defendants have failed to justify their
invocation of Exemption 7(D), ” and ruled in favor of
Plaintiffs with regard to the 67 pages withheld under that
exemption. Id. at 496. With respect to Exemptions 6
and 7(C), Defendants narrowed their argument, asserting that
these exemptions were only in support of its withholding of
the names of the attorney and the law firm representing the
confidential source. Id. at 486, 488. The court
granted summary judgment to Defendants as to the
attorney's name. Focusing on Exemption 7(C), the court
applied a “categorical rule permitting an agency to
withhold information identifying private citizens mentioned
in law enforcement records, unless disclosure is
‘necessary in order to confirm or refute compelling
evidence that the agency is engaged in illegal
activity.'” id. at 497 (quoting
Schrecker v. U.S. Dep't of Justice, 349 F.3d
657, 661 (D.C. Cir. 2003)). The court reasoned that, because
Plaintiff had not “come forward with ‘compelling
evidence' that would confirm or refute allegations of
illegal agency activity, Plaintiff cannot overcome
application of the categorical rule in this case.”
Id. at 497-98.
regard to the law firm, the court found that Defendants had
not carried their burden to show that disclosure would risk
identifying the lawyer. (As an entity, neither Exemption 7(C)
nor 6 applied directly to the law firm.). Id. at
499-500. The court nevertheless allowed Defendants to submit
additional facts to support their assertion that the
disclosure of the firm's name could “reasonably be
expected to constitute an unwarranted invasion of the
lawyer's personal privacy.” Id. at 500.
Defendants did so on October 9, 2018, providing an in
camera submission to the court. See ECF No. 40.
Afterwards, the parties met and conferred, narrowing the
remaining issues. See Plaintiff's Status Report,
ECF No. 46, ¶¶ 6-9.
parties now move for summary judgment as to the
non-disclosure of the law firm's name. See
Defendants' Second Renewed Mot. for Summ. J., ECF No. 51
[hereinafter Defs.' Mot.]; Pl.'s Mot. at 16-20.
Plaintiff also asks the court to reconsider its prior ruling
upholding Defendants' withholding of the attorneys'
names under Exemption 7(C). See Pl.'s Mot. at