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White Coat Waste Project v. United States Department of Veterans Affairs

United States District Court, District of Columbia

August 29, 2019

WHITE COAT WASTE PROJECT Plaintiff,
v.
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendant.

          MEMORANDUM OPINION

          EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE

         I. Introduction

         Plaintiff White Coat Waste Project (“WCW”), a non-profit organization that monitors federally-funded animal experiments, brings this Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against the United States Department of Veterans Affairs (“VA”), seeking to obtain certain records about canine experiments at the Louis Stokes Cleveland Veterans Affairs Medical Center (“Stokes VAMC”) in Ohio. The dog experiments have prompted speculation and resulted in protests. Stokes VAMC eventually released responsive documents, invoking certain FOIA exemptions based on the nature of the animal research and the privacy interests of its principal investigators and other research personnel. Following Stokes VAMC's productions, WCW's administrative appeals of certain withholdings, and the filing of this action, the remaining dispute is quite narrow. WCW solely seeks the name of the principal investigator on a research protocol for dog experiments at Stokes VAMC.

         Pending before the Court are the parties' cross-motions for summary judgment. Upon careful consideration of the parties' submissions, the applicable law, and the entire record herein, the Court concludes that FOIA Exemption 5's deliberative process privilege does not justify withholding the principal investigator's name, and that the Court finds that the VA has failed to provide it with sufficient information to determine whether the principal investigator's name was properly withheld under Exemption 6. Therefore, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion for Summary Judgment and GRANTS IN PART, DENIES IN PART, and HOLDS IN ABEYANCE Plaintiff's Cross-Motion for Summary Judgment. The Court DENIES WITHOUT PREJUDICE WCW's requests for in camera review and the production of the animal research protocol, and DEFERS ruling on the issue of whether the agency has “officially acknowledged” the principal investigator's name.

         II. Background

         WCW is a non-profit organization with a mission “to expose and end wasteful taxpayer-funded animal experiments.” Def.'s Statement of Material Facts (“Def.'s SOMF”), ECF No. 20-1 at 1 ¶ 1 (quoting Compl., ECF No. 1 at 2 ¶ 4); see also Pl.'s Counter-Statement of Material Facts (“Pl.'s SOMF”), ECF No. 21-2 at 1 ¶ 1 (same).[1] As part of its investigation into the VA's dog experiments, WCW submitted a FOIA request to Stokes VAMC on April 3, 2017, seeking the following records:

(1) A current census of all dogs actively held and used in the Stokes VAMC laboratories (including each animal's ID number, breed, name, color and distinctive markings, date of birth, source, USDA pain category, and assigned protocol); (2) Photographs and videos of these or other dogs used in Stokes VAMC labs (from January 1, 2010 to the present); (3) Active [Institutional Animal Care and Use Committee]-approved protocols to which these dogs are assigned; and (4) Animal welfare incident reports association with the aforementioned projects (from January 1, 2010 to the present).[2]

Compl., ECF No. 1 at 2 ¶ 8; see also Def.'s SOMF, ECF No. 20-1 at 1-2 ¶ 2. Acknowledging receipt of WCW's request on April 5, 2017, Stokes VAMC responded to WCW on April 17, 2017, claiming that it did not have responsive records. Decl. of Tomica Jefferson (“Jefferson Decl.”), ECF No. 20-3 at 3 ¶ 7, 4 ¶ 8.

         On April 26, 2017, WCW administratively appealed that response. Id. at 4 ¶ 9. Stokes VAMC then conducted a “comprehensive search, ” Def.'s SOMF, ECF No. 20-1 at 2 ¶ 4, locating responsive records in a filing cabinet in a research area, id. at 2 ¶ 7. Stokes VAMC found sixty-seven responsive documents. Id. at 2 ¶ 4. Stokes VAMC produced fourteen pages in part and withheld fifty-two pages in full. Id. The VA withheld the census records under FOIA Exemptions 4, 5, and 6, [3] id. at 2 ¶ 5, and the IACUC-approved protocols under Exemption 5, id. at 2 ¶ 6. According to Stokes VAMC, there were no responsive photographs, videos, and animal welfare reports. Id. WCW did not challenge those categories of documents. Jefferson Decl., ECF No. 20-3 at 7 ¶ 22.

         On September 13, 2017, WCW filed a second administrative appeal, challenging the withholdings in the census records and the IACUC-approved protocols. Id. at 5 ¶¶ 18-19. Stokes VAMC stood by all of its initial conclusions, with the exception of a research protocol and certain census information. Id. at 5 ¶ 19. Stokes VAMC “continue[d] to withhold the principal investigators' names as well as other research personnel within the protocol and location of building rooms, pursuant to FOIA Exemptions (b)(5) and (b)(6).” Id. at 5 ¶ 19(b). Stokes VAMC explained that “[p]rincipal investigators as well as other research personnel have a privacy interest in being protected from annoyance and harassment” pursuant to Exemption 6, id. at 6 ¶ 20(a), and the census records and protocol “discuss unadopted opinions of the Principal Investigator and research personnel” pursuant to Exemption 5, id. at 7 ¶ 21(a).

         On May 1, 2017, WCW submitted a second FOIA request to Stokes VAMC, seeking to obtain the following records:

(1) Invoices for all dogs purchased or otherwise procured by Stokes VAMC (from January 1, 2016-present); (2) Acquisition and disposition records for all dogs purchased or otherwise procured by Stokes VAMC (from January 1, 2016-present); (3) Complete animal use and veterinary records for all dogs used in Stokes VAMC experiments (from January 1, 2016-present); (4) Active IACUC-approved Stokes VAMC protocol/s for the use of dogs; (5) Animal welfare incident reports associated with the use of dogs at Stokes VAMC (from January 1, 2014-present); (6) All emails and other records associated with the adoption of any dogs from Stokes VAMC (January 1, 2016-present); (7) Inactive IACUC-approved protocol/s for the use of dogs (from January 1, 2015-present); and (8) Photographs and videos of dogs used in Stokes VAMC labs (from January 1, 2010-present).

Compl., ECF No. 1 at 4-5 ¶ 21. On August 3, 2017, Stokes VAMC released 169 pages of responsive documents, withholding in part certain information under Exemptions 4, 5, and 6. Jefferson Decl., ECF No. 20-3 at 8 ¶ 27; see also Def.'s SOMF, ECF No. 20-1 at 3 ¶ 9. Stokes VAMC redacted names under Exemption 6, withheld the protocols under Exemption 5, and withheld other information (i.e. “company names, addresses, invoice numbers and the like”) under Exemption 4. Def.'s SOMF, ECF No. 20-1 at 3 ¶ 10. On September 20, 2017, after litigation had already begun, the VA's Office of General Counsel received WCW's administrative appeal regarding the August 3, 2017 production. Jefferson Decl., ECF No. 20-3 at 9 ¶ 31. After the VA's Office of General Counsel issued a remand to Stokes VAMC to process WCW's appeal, Stokes VAMC eventually released 217 pages of responsive documents on March 9, 2018. Id. at 9 ¶¶ 32, 34. Stokes VAMC partially withheld the majority of those records under Exemptions 5 and 6, including the names of principal investigators, and redacted some “invoice” information under Exemptions 4, 5, and 6. Def.'s SOMF, ECF No. 20-1 at 3 ¶ 12.

         Stokes VAMC also turned over a redacted version of an animal research protocol, entitled “High Frequency Spinal Cord Stimulation to Restore Cough.” Pl.'s SOMF, ECF No. 21-2 at 8 ¶ 49; see also Pl.'s Mem., ECF No. 21-1 at 17 (asserting that “Stokes VAMC's experimenters cut the spinal cord[s] of mongrel dogs to paralyze them and then attempt to restore a cough in the paralyzed dogs.”). The protocol is a forty-eight-page document, subject to redactions pursuant to Exemptions 5 and 6. Def.'s Ex. A, Jefferson Decl., ECF No. 20-3 at 18 (showing an excerpt of the Vaugh index).[4] That redacted document-the protocol at issue- excludes the name of the principal investigator. See Pl.'s SOMF, ECF No. 21-2 at 8 ¶¶ 49-50. Over the course of this litigation, the parties have narrowed the scope of the dispute to the protocol at issue. See Decl. of Matthew Strugar (“Strugar Decl.”), ECF No. 21-4 at 2 ¶ 10. WCW solely challenges the redactions of the principal investigator's name in the protocol in order to hold that person and the VA accountable. Id. at 8 ¶ 50; see also Pl.'s Mem., ECF No. 21-1 at 35.

         Both parties moved for summary judgment. See, e.g., Def.'s Mot. for Summ. J. (“Def.'s Mot.”), ECF No. 20; Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. (“Def.'s Mem.”), ECF No. 20-2 at 1-19; Pl.'s Cross-Mot. for Summ. J. (“Pl.'s Mot.”), ECF No. 21 at 1-3.[5] The VA argues that it is entitled to summary judgment for the following five reasons: (1) it conducted adequate searches for the responsive records; (2) it properly withheld certain financial, tax and other information of vendors under Exemption 4; (3) it appropriately withheld census and protocol records under Exemption 5 because those “records are a deliberative prelude to a report that the VA typically makes publicly available[;]” (4) it properly invoked Exemption 6 to protect the privacy interests of its employees and shield them from harassment “[g]iven the nature of animal research work and antipathy towards [that research][;]” and (5) it released all reasonably segregable, non-exempt information, withholding exempt information under Exemptions 4, 5, and 6. Def.'s Mem., ECF No. 20-2 at 1-2. In moving for summary judgment, WCW argues that the VA has failed to demonstrate that the name of the principal investigator on the animal research protocol is exempt from disclosure. Pl.'s Mot., ECF No. 21 at 1. WCW contends that the VA waived all claimed exemptions to the principal investigator's name by previously disclosing it in the public domain.[6] Pl.'s Mem., ECF No. 21-1 at 22-24. WCW concedes that the VA has adequately conducted its searches, properly invoked Exemption 4 to the withholdings, and appropriately segregated the non-exempt information from the exempt information. Id. at 21-22; see also Def.'s Opp'n, ECF No. 27 at 3. The briefing is now complete, and the motions are ripe and ready for the Court's adjudication.

         III. Legal Standard

         The “vast majority” of FOIA cases can be resolved on summary judgment. Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A court may grant summary judgment only if “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). Likewise, in ruling on cross-motions for summary judgment, the court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed. See Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice, 658 F.Supp.2d 217, 224 (D.D.C. 2009) (citation omitted). Under FOIA, “the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester[, ]” and summary judgment is appropriate only after “the agency proves that it has fully discharged its [FOIA] obligations . . . .” Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C. 1996) (citations omitted).

         When considering a motion for summary judgment under FOIA, the court must conduct a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). The court may grant summary judgment based on information provided in an agency's affidavits or declarations when they are “relatively detailed and non-conclusory, ” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted), and “not controverted by either contrary evidence in the record nor by evidence of agency bad faith, ” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are “accorded a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.'” SafeCard Servs., 926 F.2d 1197 at 1200 (citation omitted).

         IV. Analysis

         As stated by WCW, “[t]he parties' cross-motions for summary judgment in this case involve one piece of information: the name of the principal investigator on a publicly-funded experiment on dogs at [Stokes VAMC] entitled ‘High Frequency Spinal Cord Stimulation to Restore Cough.'” Pl.'s Reply, ECF No. 29 at 5. The sole dispute is whether the VA's redactions of the principal investigator's name on the protocol at issue were justified under Exemptions 5 and 6.[7] The VA advances four primary arguments for why the redactions were proper. The VA's first argument is that the non-final research protocols are government agency records; thus, those records are covered under Exemption 5's deliberative process privilege. Def.'s Mem., ECF No. 20-2 at 12-13. Next, the VA argues that the redactions of the names of the principal investigators and other research personnel were proper under Exemption 6 to protect them from the possibility of embarrassment and harassment in conducting the canine research, which constitutes a substantial privacy interest against any public interest in the name. Id. at 16-17; see also Def.'s Opp'n, ECF No. 27 at 3-8. The VA's next argument is that WCW will gain access to the principal investigator's name in due course based on its “practice of releasing the names of principal investigators along with completed research protocols in abstract form.” Def.'s Opp'n, ECF No. 27 at 8. Finally, the VA contends that it has not waived any exemptions with respect to withholding the principal investigator's name because the research has not been released to the public. Id. at 10. And WCW has failed to meet its “burden of pointing to specific information in the public domain that duplicates that being withheld” because “[the VA] has not published or publicly disclosed the exact protocol that [WCW] would need to be able to meet this Circuit's strict standard.” Id.

         WCW responds that the protocol was improperly withheld under Exemption 5 because: (1) information and names in research protocols constitute factual material that the deliberative process privilege rarely covers, Pl.'s Mem., ECF No. 21-1 at 26, and (2) the agency is neither “coming up with the names of its principal investigators” nor “using the names of investigators to formulate agency policy, ” id. at 27. WCW contends that the principal investigator only has a de minimis privacy interest in his or her name. Id. at 28-29, 35. Finally, WCW argues that the VA has waived any claimed exemptions for redacting the principal investigator's name on the protocol at issue because “the exact information that WCW seeks through this litigation has already been published by the VA itself, ” id. at 24, and the National Institute of Health (“NIH”) published the name of the principal investigator on its online database, id. at 22.

         The Court will address each argument in turn, concluding that the VA improperly withheld the principal investigator's name under Exemption 5, and that the Court lacks sufficient information to determine whether the name was properly withheld under Exemption 6.

         A. The VA Improperly Withheld the Principal Investigator's ...


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