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People for the Ethical Treatment of Animals v. NIH, No. 10-1818, 2012 WL 1185730 (D.D.C. Apr. 10, 2012) (Jackson, J.).  Holding:  Dismissing, without prejudice, and treating as conceded plaintiff's claim concerning NIH's decision to withhold certain records in response to one of its requests and its Administrative Procedure Act claim where plaintiff did not respond to defendant's arguments with respect to those issues; denying defendant's motion to dismiss the remaining FOIA claim on exhaustion grounds where NIH adjudicated plaintiff's administrative appeal despite its untimeliness; and granting defendant's motion for summary judgment on the grounds that it properly invoked the Glomar response in conjunction with Exemption 7(C).  In terms of plaintiff's argument that information about the existence of the investigation "is already publicly known" and would therefore not constitute an invasion of privacy, the court determines that "plaintiff has failed to point to anything indicating the government, as opposed to some other organization or source, has acknowledged the existence of investigations."  Additionally, plaintiff's own complaint requesting an investigation of the researchers at issue, "does not establish the fact that an investigation is underway, even if NIH has a policy that it 'will' investigate allegations of non-compliance with animal care rules."  The court also finds that a letter addressed to the USDA, which expresses concern regarding the treatment of animals and names the three researchers, does not demonstrate the existence of an NIH investigation on the subject.  Similarly, the court also finds that "it cannot be said that a non-authenticated interoffice memo is tantamount to public acknowledgement of the existence of an investigation related to the three named individuals."  The court likewise determines that a letter from the research center to plaintiff acknowledging the investigation "is, at most, speculation on Auburn's behalf about a process in which it may or may not have been involved." 

Conversely, the court finds that "plaintiff has failed to identify any public interest that would overcome the recognized privacy interest protected in Exemption 7(C)."  In terms of plaintiff's assertion that "there is a strong public interest in knowing 'whether those who conduct research on animals are treating them humanely,'" the court concludes that "[e]ven if plaintiff is correct . . . that concern does not allow citizens to know 'what their government is up to,'" which is the public interest standard set forth by the Supreme Court in Reporters Committee.  The court finds that "[h]ere the release of information plaintiff has requested would reveal nothing about the government's own conduct, as opposed to the conduct of individual researchers or recipients of government funding."  As to plaintiff's claim that "the public has an interest in 'ensuring that federal taxpayer dollars are not misused,'" the court determines that "plaintiff's FOIA request does not seek documents that would shed light on that issue." 

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