King & Spalding, LLP v. HHS, No. 16-01616, 2017 WL 3913216 (D.D.C. Sept. 6, 2017) (Mehta, J.)

King & Spalding, LLP v. HHS, No. 16-01616, 2017 WL 3913216 (D.D.C. Sept. 6, 2017) (Mehta, J.)

Re:  Request for records concerning plaintiff's client and off-labeling marketing practices investigation

Disposition:  Denying plaintiff's motion for summary judgment; denying defendant's motion for summary judgment

• Exemption 7(C) & Exemption 7(D):  "The court cannot . . . resolve [the] dispute [concerning the use of Exemptions 7(C) and 7(D)] on the present record."  The court explains that, "[i]n this case, the applicability of both exemptions may turn on whether the source that supplied the Government with information about [plaintiff's client] is an entity or an individual."  "If Plaintiff is correct that the source is an entity, then the materials the entity supplied cannot be withheld under Exemption 7(C) based solely on the company's interest in nondisclosure."  "The identity of the source also impacts the Exemption 7(D) calculus[]" because "the [Supreme Court] suggested that an implied assurance of confidentiality may be more difficult to establish in cases where a 'private institution[,]' as opposed to an individual, cooperates in a criminal investigation."  "Thus, absent more information about whether the Government's anonymous source is an entity or an individual, the court cannot evaluate the propriety of nondisclosure under Exemption 7(C) or Exemption 7(D)."