Perioperative Servs. & Logistics LLC v. VA, No. 21-5223, 2023 WL 192419 (D.C. Cir. Jan. 17, 2023) (Tatel, J.)

Perioperative Servs. & Logistics LLC v. VA, No. 21-5223, 2023 WL 192419 (D.C. Cir. Jan. 17, 2023) (Tatel, J.)

Re:  Request for email sent to VA accusing requester of selling counterfeit medical device implants to VA, which resulted in VA placing temporary recall on requester’s products

Disposition:  Affirming district court’s grant of government’s motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration:  The Court of Appeals for the District of Columbia Circuit relates that the government explained to the district court that “publicly filing [the government’s] declaration would itself reveal information that would unmask the complainant.”  The court relates that “‘[t]he district court agreed [and] reviewed [defendant’s] declaration in camera . . . .”   “‘This is one of the rare cases,’ the district court explained, ‘where the ex parte submission, with its detailed description of the nature of the withheld document and the reasons underlying the exemption, was necessary to preserve the privacy of the third party involved.’”  The court explains that “a district court may rely on an ex parte declaration in a FOIA case only when” “(1) the validity of the government's assertion of exemption cannot be evaluated without information beyond that contained in the public affidavits and in the records themselves, and (2) public disclosure of that information would compromise the secrecy asserted.” “[The court] understand[s] [the requester’s] frustration: the district court relied on a declaration that the company cannot see, let alone rebut.”  “But that dilemma is inherent in those FOIA cases where, as here, an ex parte declaration is the only way to ‘decid[e] the dispute without . . . disclosing the very material sought to be kept secret.’”
   
• Exemption 6:  The Court of Appeals for the District of Columbia Circuit holds that “the VA has demonstrated that the complaint is exempt from disclosure under FOIA Exemption 6.”  The court notes that “[the requester] acknowledges that the complaint qualifies as a similar file, as courts construe that term.”  The court then finds that “the person who filed the complaint against [the requester] has a substantial privacy interest in maintaining in confidence the fact that he or she accused the company of wrongdoing and in avoiding unwanted contact by it.”  The court relates that “[the requester] argues that disclosing the complaint would contribute to an understanding of the operations of the VA because it would show ‘how a competitor can abuse the VA’s investigatory processes by filing a false complaint for the purposes of causing harm to a competitor and then how the VA could suspend [the accused company’s] ability to do business with the VA before it investigated the complaint.’”  The court finds that “[k]nowing how the VA handles complaints from competitors certainly qualifies as a public interest, but [the requester] offers nothing but speculation to suggest that a competitor filed the complaint against it.”  “Given this, together with other material facts – on which [the court relates that it] cannot here elaborate – contained in the [government’s] declaration, [the court] believe[s] that the complainant’s substantial privacy interest outweighs any public interest in disclosure.”
   
• Procedural Requirements, “Reasonably Segregable” Obligation:  The Court of Appeals for the District of Columbia Circuit relates that “[a]ccording to [the requester], ‘it is simply impossible that every word and punctuation mark would disclose the identity of someone!’”  The court finds that “this misapprehends the VA’s FOIA obligations.”  “It need not disclose a redacted version of the complaint if the unredacted markings would ‘have minimal or no information content.’”