Empower Oversight Whistleblowers & Rsch. v. NIH, No. 23-1141, 2024 WL 4886478 (4th Cir. Nov. 27, 2024) (Thacker, J.) Re: Request for records concerning submission and subsequent removal of certain COVID-19 sequences from NIH’s Sequence Read Archive (“SR
Empower Oversight Whistleblowers & Rsch. v. NIH, No. 23-1141, 2024 WL 4886478 (4th Cir. Nov. 27, 2024) (Thacker, J.)
Re: Request for records concerning submission and subsequent removal of certain COVID-19 sequences from NIH’s Sequence Read Archive (“SRA”)
Disposition: Affirming district court’s grant of government’s motion for summary judgment
- Litigation Considerations, Relief, Exhaustion of Administrative Remedies & “Policy or Practice” Claims: The Court of Appeals for the Fourth Circuit relates that “[the requester] first claims that FOIA provides a standalone cause of action when an agency violates the statutorily imposed deadlines.” “Therefore, [the requester] argues that summary judgment was improper as to Count One because NIH did not meet the FOIA deadlines for production of the documents.” The court holds that “[t]his is at odds with our precedent and the plain text of FOIA.” “Here, . . . there is no question that NIH failed to comply with the FOIA twenty-day time limit.” “[T]his violation has already been redressed through constructive administrative exhaustion.” “Indeed, [the requester] proceeded directly to court.” “Therefore, NIH cannot rely on the traditional administrative appellate process, and FOIA does not provide a separate cause of action.” “While [the court has] not addressed any exceptions to the exclusivity of this remedy, other circuits have allowed injunctive relief where a litigant alleges, and proves, that the agency in question has a ‘policy or practice’ of violating FOIA’s timelines.” The court relates that “[it has] not had occasion to determine whether to recognize a policy or practice claim in this Circuit and this case does not present the proper vehicle to do so.” “Here, [the requester] failed to allege a policy or practice claim, and there is nothing in the facts of this case to indicate a willful and repeated violation of FOIA deadlines.”
- Litigation Considerations, Adequacy of Search: The Court of Appeals for the Fourth Circuit holds that, “[b]ased on this record, the district court was correct in concluding that NIH fulfilled its obligations pursuant to FOIA to perform a search ‘reasonably calculated to uncover all relevant documents.’” “The declarations submitted by NIH are sufficiently detailed to explain where NIH searched, why those areas were searched, and the mechanisms of the search.” Additionally, the court finds that NIH “explained [why particular] key words were chosen.” And, finally, the court finds that, in response to one request for Congressional correspondence, NIH sufficiently explained that “[it] did not need to search individual email accounts, since [that material] was all contained in a single database.”
The court relates that “[the requester] further argues that the searches were inadequate because NIH did not explain the discrepancy between the initial and subsequent productions for the First and Second Requests.” The court finds that “[c]ontinuing production is a sign of an agency’s compliance – not of inadequacy.” “Continuing production is to be rewarded, not punished, and NIH sufficiently explained the reasons for the additional document productions.”
- Exemption 5, Deliberative Process Privilege: The Court of Appeals for the Fourth Circuit relates that “[the requester] challenges two redactions made by NIH pursuant to exemption five.” “First, Appellant challenges the redaction of a list of questions and responses that were prepared in response to a Chinese news article covering the Bloom publication.” “This listing of questions and responses was part of an email discussion among NIH employees.” “The employees were discussing how to respond to the article.” The court finds that, “[h]ere, the record . . . demonstrates that these responses were pre-decisional and deliberative.” “First, the responses were exchanged between employees with requests for input.” “Attached to the email exchanges is an information sheet setting out the prior NIH responses to the media and providing draft answers as to how to respond to further questions.” “The redacted material is clearly a deliberation about potential responses to the Chinese news article, and how to best proceed in responding to questions.” “These questions did not demonstrate the final position of NIH.” “Moreover, while the potential responses may have contained factual information, the record demonstrates the factual information was so intertwined with the potential responses as to require simultaneous disclosure of the thinking of NIH about the article.” “Thus, this redaction is deliberative and pre-decisional as it demonstrates NIH preparing a response to the article before the final response was produced.” “Therefore, it falls within the ambit of exemption five and was properly redacted.”
“Next, Appellant challenges the NIH redaction of draft responses to the inquiry from Senators Blackburn and Grassley.” “The factual information was so intertwined with the deliberative process information so as to prevent disclosure of the facts without simultaneously disclosing the deliberation.” “The record indicates that NIH was engaged in intra-agency discussions as to how to respond to the Senators.” “The fact that the documents in question were drafts also indicates that the documents were pre-decisional and deliberative.” “While the label of ‘draft’ is not dispositive, the fact that these responses were to be provided to Congressional officials and exchanged among various NIH employees with requests for feedback demonstrates the draft nature of these responses.” “Thus, they are properly covered by exemption five.”
- Exemption 6: The Court of Appeals for the Fourth Circuit relates that, “[p]ursuant to exemption six, NIH redacted the email address and phone number of the SRA curator, the identity of the NIH program analyst who worked with the curator, and the identity of the Wuhan University researcher who submitted the withdrawn sequence.” The court finds that “Exemption six has been applied to agency employees’ identities and email addresses.” “Therefore, the redacted email addresses of NIH employees and the identity of the Wuhan University researcher clearly fall within the ambit of exemption six.” “[The requester] does not dispute this.” “Instead, Appellant argues the contact information and identity of the NIH employees and the Wuhan University researcher goes to the public’s interest in knowing what their government knows about the origin of the COVID-19 pandemic and that the public interest should prevail.” “[The court is] not convinced.” “First, knowing the NIH employees’ contact information and identity has no bearing on the knowledge the American public has about the origin of the pandemic.” “The actions these employees took relating to the removed sequence may be relevant to that question.” “However, [the requester] has not demonstrated how disclosing the identity and contact information of these individuals will promote the public's knowledge about the origin of the pandemic and [the court] cannot discern any legitimate reason for disclosure of this information.” “As to the identity of the Wuhan University researcher, [the requester] presents a closer question.” “At oral argument, [the requester] argued that the identity of this researcher was relevant to the ability of the public to access further research by this same researcher about the origin of the COVID-19 pandemic.” “But, this argument is too attenuated to demonstrate a sufficient public interest in access to the identity of the Wuhan University researcher.” “[The requester] argues that knowing the identity could lead an American citizen to learn of other papers which may be published by this same researcher that may be about the origin of the COVID-19 pandemic.” “That attenuated possibility cannot outweigh the privacy interest of the researcher.”