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New Hampshire Right to Life v. HHS, No. 11-cv-585-JL, 2013 WL 5461845 (D.N.H. Sept. 30, 2013) (Laplante, J.)

Re: Request for records concerning award of "sole-source discretionary replacement grant" to Planned Parenthood of New England Disposition: Granting defendant's motion for summary judgment in part and denying in part; granting plaintiff's motion for summary judgment in part and denying in part
  • Exemption 4: The court holds that HHS properly withheld Planned Parenthood's Manual of Medical Standards and Guidelines and a letter describing them and information concerning Planned Parenthood's Fees and Collections Policy.  The court notes at the outset that Planned Parenthood's non-profit status does not prevent the information from being commercial.  "The scope of 'commercial information' under exemption 4 does not depend on the character of the entity that submitted it to the agency, but on the character of the information itself."  The court notes that "the manual 'provides a model for operating a family planning clinic' while the other documents contain formation on more discrete aspects of that operation, including setting rates, managing employees, and collecting accounts." In addition, the court finds that the information at issue is confidential.  The court determines that there is a risk of competitive harm to Planned Parenthood should its manual or fee and collections policies be released.  HHS has shown that "entities compete with Planned Parenthood for patients" and that release of its operating manual would cause substantial harm to Planned Parenthood's competitive position.  Likewise, release of the fee and collection information could allow competitors to "'design more favorable policies to attract patients away from' Planned Parenthood."   However, the court is not persuaded that release of personnel policies would cause competitive harm especially given the "public availability" of much of this type of data concerning pay, benefits, and work conditions.  Notably, the court specifically rejects plaintiff's contention that even if material is confidential, a public interest in the material is sufficient to outweigh the risk of competitive harm. 
  • Exemption 5/Deliberative Process Privilege:  The court finds that HHS properly withheld memoranda and emails concerning HHS's decision to solicit a grant application from Planned Parenthood and its decision to award the grant to Planned Parenthood.  The court states that HHS has met of its burden of showing that the documents are "predecisional, in the sense that they predated either the August 19, 2011 decision to solicit an application for the grant from Planned Parenthood on a sole-source basis . . . or the September 14, 2011 decision to award the grant to Planned Parenthood." However, the court rejects HHS's contention that "an agency representative's 'participation' in a telephone call with an elected official amounts to a 'decision' so as to bring documents advising the representative on what to say within the auspices of the deliberative process privilege."
  • Exemption 6:  The court finds that HHS properly withheld "names, private phone numbers, and biographical sketches of the middle- and lower-level employees of Planned Parenthood."  The court notes that these individuals "do not even work for the federal government, but for a private organization that receives part of its funding from the federal government."  Plaintiff "does not identify, and the court cannot conceive of, any public interest in that kind of information."  However, the court determines that there is "little if any privacy interest" in their salary information "accompanied by the titles of the corresponding positions," and that there is "a substantial public interest in what government contractors pay their employees, namely, whether the contractors are 'spending taxpayer funds efficiently and effectively.'" The court also holds that HHS must release the curriculum vitae of its "Medical Director."  "Given HHS's acknowledgment of a public interest in the identity of 'who is running [Planned Parenthood's] clinics'" and the lack of identification of "any countervailing privacy interest in the items of that person's professional or educational background that would be contained on his or her curriculum vitae," the court finds that HHS has not met its burden of showing that the curriculum vitae was properly withheld.
Court Decision Topic(s)
District Court opinions
Exemption 4
Exemption 5
Exemption 6
Updated August 6, 2014