Goldwater Inst. v. HHS, No. 19-15615, 2020 WL 1487844 (9th Cir. Mar. 24, 2020) (per curiam)

Goldwater Inst. v. HHS, No. 19-15615, 2020 WL 1487844 (9th Cir. Mar. 24, 2020) (per curiam)

Re:  Request for records concerning approval of ZMapp, an investigational drug intended for use in treating persons infected with Ebola virus

Disposition:  Vacating district court's grant of government's motion for summary judgment; remanding case to district court

• Exemption 4:  The Court of Appeals for the Ninth Circuit "vacate[s] and remand[s] so that the district court can determine whether, under established FOIA criteria, the documents at issue are exempt from disclosure under Exemption 4."  First, the court finds that "[t]he district court erred in allowing the FDA to rely on its regulations governing the confidentiality of [Investigational New Drug ("IND")] files to withhold the entire ZMapp file, rather than requiring the agency to meet its burden of showing that a particular FOIA exemption applies to the records it withheld."  "By concluding that FDA regulations governing IND applications barred disclosure of the IND file in toto, the court essentially concluded that the FDA regulations are coterminous with Exemption 4."  "This approach, however, is inconsistent with FOIA's 'pro-disclosure purpose' and the requirement that we interpret its exemptions narrowly."  "The FDA's Vaughn index and affidavits did not address the requirements of Exemption 4, but cited only FDA regulations governing IND applications."  Second, and relatedly, the court finds that "[o]n appeal, the FDA again relies on broad, general arguments about the confidentiality of IND files, rather than addressing the specific documents at issue here and showing how they fall under Exemption 4 of FOIA."  The court finds that "although the FDA argues that all records at issue were obtained from a person as required by Exemption 4, so far as we are able to determine from the record, that is incorrect."  "Nor do the affidavits submitted establish that the withheld documents contain confidential commercial or financial information covered by Exemption 4."  "The agency's argument boils down to the assertion that the documents must contain such information because they are in the IND file."  "But this is insufficient under FOIA."  Finally, the court finds that "[o]n remand, the district court also must make a finding of segregability as to any documents which the court concludes the agency may withhold."
   
• Attorney Fees:  The Court of Appeals for the Ninth Circuit holds that "[the requester] shall recover its costs on appeal."