Civil Beat Law Ctr. for the Public Interest v. Centers for Disease Control & Prevention, No. 16-16960, 2019 WL 2998727 (9th Cir. July 10, 2019)

Civil Beat Law Ctr. for the Public Interest v. Centers for Disease Control & Prevention, No. 16-16960, 2019 WL 2998727 (9th Cir. July 10, 2019)

Re:  Request for records concerning biological research laboratory's regulatory violations

Disposition:  Affirming in part, dismissing in part, vacating in part, reversing in part, and remanding district court's grant in part of government's motion for summary judgment

• Exemption 3 & Litigation Considerations, Mootness and Other Grounds for Dismissal:  The court relates that at issue is the Bioterrorism Preparedness and Response Act (BPRA), Public Health Service Act § 351A, 42 U.S.C.A. § 262a(h)(1)(C), which "exempts certain federal agencies, including the CDC, from disclosing certain categories of information relating to biological agents and toxins."  "The parties here agree, correctly, that BPRA is a qualifying statute under Exemption 3."  First, the court holds that it "does not have jurisdiction to address" the government's withholding of "'[a]ny portion of a record that discloses the site-specific or transfer-specific safeguard and security measures used by a registered person to prevent unauthorized access to listed agents and toxins.'"  "Because the CDC has now produced versions of the documents revealing one category of the information Civil Beat sought – the regulatory violations . . . – Civil Beat's claim is moot as to that information."  Additionally, the court finds that "apart from vague allusions in Civil Beat’s briefs to 'the next Law Center request for inspection results,' nothing in the record suggests that Civil Beat will be affected by the CDC's invocation of the site-specific BPRA exemption to FOIA."  Second, the court addresses the government's withholding of "'[a]ny portion of an evaluation or report of an inspection of a specific registered person . . . that discloses the identity or location of a specific registered person if the agency determines that public disclosure of the information would endanger public health or safety.'"  The court finds that this it has a "noncategorical understanding of the public endangerment exemption" because "[t]he statute clearly contemplates that, in some circumstances, disclosure of an identity or location would not endanger public health or safety." "Otherwise, the qualification that the exemption apply only 'if the agency determines that public disclosure of the information would endanger public health or safety,' . . . would be meaningless."  The court finds that "[t]he CDC's position in its brief – that it may always redact the identity or location of a registered entity, even if the identity or location are publicly known – borders on the categorical exemption Congress considered and rejected."  "Congress intended the public endangerment determination to be 'consider[ed] . . . on a case-by-case basis.'"  "'[T]o justify withholding, the government must provide tailored reasons in response to a FOIA request.'"  "'It may not respond with boilerplate or conclusory statements.'"  "[O]n the current record, [the government] did not otherwise justify its complete withholding of identity and location information."
   
• Exemption 6:  The Court of Appeals for the Ninth Circuit holds that "[w]ithholding the identities and contact information of the CDC employees under Exemption 6 was . . . proper."  First, the court holds that "the CDC has satisfied its burden of establishing a nontrivial privacy interest."  "With specific knowledge that particular CDC employees were involved in the UH biolab inspection, a nefarious person interested in the specific toxins handled at the UH biolab could choose to focus on those CDC employees – who would have knowledge of the layout and security measures at that lab—for harassment or threats."  Second, the court finds that "[the requester] has provided no reason why disclosure of the CDC employees' identities and contact information would ["'"appreciably further" the public's right to monitor the agency's action']."