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Ctr. for Med. Progress v. HHS, No. 21-642, 2022 WL 4016617 (D.D.C. Sept. 3, 2022) (Howell, C.J.)


Ctr. for Med. Progress v. HHS, No. 21-642, 2022 WL 4016617 (D.D.C. Sept. 3, 2022) (Howell, C.J.)

Re:  Request for records concerning grant application submitted by University of Pittsburgh to serve as the “‘GUDMAP Tissue Hub and Collection Site’ for NIH’s subcomponent, the National Institute of Diabetes and Digestive and Kidney Diseases (“NIDDK”)”

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; denying plaintiff’s motion for summary judgment

  • Exemption 4:  The court relates that “defendant withheld six categories of information pursuant to Exemption 4.”  “While the parties do not dispute that the first category regarding salary information of [the submitter’s] staff, may be withheld, . . . plaintiff challenges the remaining five categories – i.e., (2) the number of tissue disbursements made and shipped; (3) the names of the sites from which the [submitter] procures tissue; (4) costs for supplies, shipping, and tissue embedding or processing, storage, and disbursement, (5) the anticipated number of tissue collections for GUDMAP per year, and (6) letters submitted by [the submitter’s] clients in support of its grant application.” 

    First, the court analyzes the commercial nature of this information and related that “Plaintiff asserts that defendant has failed to ‘articulate[ ] the commercial purpose of’ categories Two, Three and Five . . . .”  The court finds that “[t]he agency’s first declaration explains how each of these categories of information ‘pertains to the [submitter’s] strategies for obtaining grants in that this information helps the [submitter] provide tissue samples to clients at a price equivalent to the costs to procure, prepare and send the samples.’”  “The declaration further highlights the significance of each category and makes clear that, taken together, releasing ‘[these categories of] information is equivalent to releasing line-item pricing information for individual services, and provides the competition with the precise figure[s] it needs to undercut the [submitter] in future grant requests for similar services.’”  Specifically, the court finds that “‘[t]he number of tissue disbursements [and anticipated number of tissue collections per year] [are] confidential commercial information because [they] directly reflect[ ] the volume of business conducted” by the [submitter].”  Regarding category five, the court finds that “Defendant also highlights the [submitter’s] commercial interest in this information as it discloses the [submitter’s] internal supply arrangements.”  Regarding category six, the court finds that “[t]he identities of the [submitter’s] customers plainly constitute commercial information.”  Finally, the court notes that “defendant appears to have introduced several new categories of withheld information not covered in its briefing or declarations.”  “As best the Court can discern, under Exemption 4, these previously unidentified categories consist of:  (1) ‘proprietary scientific practices,’ . . . (2) ‘other support,’ . . . and (3) ‘Methodology [the submitter] used to accomplish its goals,’ . . . but the record is entirely unclear whether these categories of withholdings are disputed or not.”  “Consequently, summary judgment is denied, without prejudice, with respect to each of these categories so that the propriety of any such withholding, if disputed, may be appropriately reviewed.”

    Second, the court reviews whether the information was customarily or actually treated as private and holds that “[e]xcepting [certain] concessions [that defendant made regarding inadvertently disclosed information], defendant has sufficiently shown that the [submitter] customarily and actually treated the provided information as private.”  “Here, the agency provided declarations based on personal knowledge as well as a declaration from the [submitter] to establish that all categories of withheld information under Exemption 4 are customarily and actually treated by the [submitter] as confidential information.”  The submitter also related that the information “is not distributed to other individuals working or studying at the University or to the public generally.”  “NIH’s declaration also attests that the [submitter] conveyed to the agency ‘that the withheld information is . . . confidential in nature [and] . . . is always kept confidential.’”  “These declarations provide a firm foundation for establishing defendant's confidentiality claim.”  The court relates that “Plaintiff attacks the sufficiency of these declaration[s] by pointing out that certain information in the withheld categories was not actually treated as confidential but was instead publicly available information.”  The court finds that, “[w]ith the exception of [a few issues], plaintiff has failed to show that the majority of withheld information is not customarily and actually treated as private.”  “Although defendant did release several other types of information within the withheld categories, those releases were due to inadvertent disclosures and certainly did not reflect the [submitter’s] stance on how the information is typically and actually treated by the [submitter].”  “Thus, defendant has satisfactorily established that, outside of the conceded exceptions, the information withheld under Categories Two, Three, Four, and Five, is customarily and actually treated as private.”

    Third, regarding assurances of privacy, the court notes that “Plaintiff does not contest, and defendant’s declarations confirm, that the withheld categories of information were submitted under an assurance of privacy and thus that this requirement is also satisfied.”  “The agency declaration makes clear that the categories of information withheld under Exemption 4 in this matter ‘[are] routinely withheld at NIH and other agencies when releasing grant information under the FOIA precisely in recognition of the commercial sensitivity of the information.’”  “[The submitter] confirmed that he has a longstanding understanding of NIH’s practices in regard to grant applications and FOIA requests, noting both the common practices of the [submitter] when submitting redaction requests to NIH as well as the [submitter’s] reliance on NIH’s standard redactions.”  “These supporting declarations of NIH and [the submitter] reveal ‘implied’ assurances of privacy ‘based on context and the history of [NIH] and [the submitter’s] relationship.’”  “Accordingly, defendant has demonstrated that the categories of information withheld under Exemption 4, barring conceded exceptions, constitute ‘confidential’ information.”

    Finally, the court finds that “[c]ontrary to plaintiff’s claims that defendant’s specified harms are ‘too tenuous and broad’ or ‘generic,’ . . . for each category of information, the agency’s declarations have ‘directly articulated “[a] link between the specified harm and the specific information contained in the material withheld.”’”  “In particular, NIH’s declaration explains that disclosure of the withheld information in Categories Two, Three, Four, and Five would put the [submitter] at competitive disadvantage because release of the information at issue ‘is equivalent to releasing line-item pricing information for individual services, and provides the competition with the precise figure it needs to undercut the [submitter] in future grant requests for similar services.’”  “Similarly, the disclosure of information in Category Six would foreseeably cause competitive harm ‘because competitors could attempt to underbid the [submitter] for its clients,’ which would clearly affect its profit margins.”  “Such assertions sufficiently describe how disclosing the withheld information would cause ‘genuine harm to [the submitter’s] economic or business interests.’”
  • Exemption 6:  “[T]he Court grants summary judgment to defendant.”  The court relates that “plaintiff challenges defendant’s withholding of only three categories of information:  Category Three regarding the names, job titles, location of tissue procurement sites, and other identifying information of [the submitter’s] employees involved in administering the grant, with the exception of the name of the principal investigator; Category Five regarding names and identifying information of third parties supporting the grant; and Category Six regarding identifying information in letters of support submitted with [the submitter’s] grant application.”  First, the court finds that “Plaintiff does not dispute that the requested information are ‘similar file[s],’ . . . and because the names, job titles, location of tissue procurement sites, and other identifying information of [the submitter’s] employees, names and identifying information of third parties supporting the grant, and names and identifying information of clients who wrote letters in support of the grant are ‘bits of personal information,’ . . . Exemption 6 may be triggered.”

    Second, the court finds that “defendant has established a substantial privacy interest in the withheld information due to the justified and articulable risk of harassment and violence that [the submitter’s] employees, third-party supporters, and clients face due to their association with fetal tissue research and procurement.”  Plaintiff argued that the “privacy interest is de minimus” because of “the public availability of the principal investigator’s name and the names of other individuals associated with the University of Pittsburgh’s Biospecimen Core.”  However, the court finds that “the publication of employees’ names [on the university’s website] does not lead to the invasion of the privacy interest at issue because it is not apparent which employees are involved with fetal tissue research.”  The court relates that “plaintiff argues that the locations of tissue procurement sites have been publicly acknowledged and thus disclosure of the location information cannot result in the invasion of a substantial privacy interest.”  “As with Exemption 4, defendant has released the names of several locations where fetal tissue is procured or processed for the grant that were withheld pursuant to Exemption 6.”  “Accordingly, [the court holds that] these withholdings are no longer at issue and summary judgment as to them is denied as moot.”  “Nonetheless, the release of these general locations does not remove the potential for harm that could result if harassers or those with violence on their minds learned the specific locations within the hospitals where individuals worked on fetal tissue research, procurement, or processing.”

    Finally, the court relates that “Plaintiff contends that the withheld information ‘sheds light on how [NIH] spends taxpayer money, with whom [NIH] partners in research involving fetal tissue, how the research is performed, and whether federal and state laws have been followed.’”  “As defendant aptly points out, plaintiff has failed to show how the withheld information under Categories Three, Five, and Six affects those interests.”  The court finds that “Plaintiff does not articulate how the release of any of the disputed categories of information, which involve non-agency third parties, will shed light on how the agency operates in ways that has not already been disclosed by the released information.”
  • Litigation Considerations, “Reasonably Segregable” Requirements:  The court holds that “Defendant has . . . demonstrated compliance with its segregability obligations, and the disputed records are properly withheld.”  The court finds that “the agency’s statement that any disclosure of non-exempt, segregable information would not result in the release of any meaningful information, . . . suffices to show that the withheld information could not be further segregated.”  Additionally, responding to plaintiff, the court finds that “[a]n agency’s revision of its previous segregability determination does not, as plaintiff suggests, raise an inference that the agency has failed to comply with its obligation to release all reasonably segregable, non-exempt information.”  “To the contrary, supplemental releases of information ‘evidence[ ] a good-faith effort on the [agency’s] part to segregate nonexempt information where possible.’”
  • Litigation Considerations:  The court relates that “plaintiff contends that summary judgment should be denied to defendant due to the agency’s bad faith in processing the initial request, . . . the handling of revised productions, . . . and inconsistencies in the agency declarations, . . . , such that the presumption of accuracy generally given to agency declarations is not warranted here.”  The court finds that “none of plaintiff’s assertions warrant a finding of bad faith on the part of defendant.”  The court explains that “plaintiff’s FOIA request was ultimately processed without any information excluded from the search and the initial processing officer merely explained that her request for plaintiff to exclude certain information from its FOIA request would expedite, not foreclose, processing, and that she did not have the power to make any final release determinations.”  Additionally, the court finds that “[a]lthough defendant’s briefing and redactions have certainly revealed some inadvertent releases and inconsistent redactions, the overall comprehensiveness of its declarations and Vaughn indices defeat any assertion of bad faith.”  “In short, although defendant’s execution of its duties under FOIA was not perfect, ‘error-free performance is not required.’”  “Altogether, the Court is satisfied that no sufficient reason has been presented to revoke the presumption of good faith and substantial deference generally accorded to sworn agency affidavits in FOIA cases.”
Court Decision Topic(s)
District Court opinions
Exemption 4
Exemption 6
Litigation Considerations, Supplemental to Main Categories
Litigation Considerations, “Reasonably Segregable” Requirements
Updated October 13, 2022