Rozema v. HHS, No. 14-0495, 2016 WL 865300 (N.D.N.Y. Mar. 2, 2016) (Suddaby, C.J.)

Rozema v. HHS, No. 14-0495, 2016 WL 865300 (N.D.N.Y. Mar. 2, 2016) (Suddaby, C.J.)

Re: Request for records concerning quantities of menthol contained in cigarettes

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

• Procedural Requirements, Searching for Responsive Records:  "After carefully considering the matter [of whether FDA's search was adequate], the Court answers this question in the affirmative[.]"  The court notes that "[p]laintiff concedes that FDA's search for documents responsive to his FOIA request was adequate."
   
• Exemption 4:  "After carefully considering the matter [of whether defendant's use of Exemption 4 was proper], the Court answers this question in the affirmative."  The court first notes that "[p]laintiff did not file a statement of material facts in opposition to Defendants' motions for summary judgment or in support of his cross-motion for summary judgment."  "Plaintiff has therefore not refuted the material facts advanced by Defendants in support of their arguments that FOIA Exemption 4 applies (that is, that menthol quantities constitute trade secrets and confidential commercial information and thus should not be disclosed to the public)."  The court finds that, "for the reasons stated by Defendants, and based upon the record evidence, the Court finds that the menthol quantity information submitted to FDA (including Topic 11 Responses) satisfies the three-part test employed by the Second Circuit when FOIA Exemption 4 is invoked."  The court relates that defendant argued that it "properly withheld all responsive information pursuant to FOIA Exemption 4 because (a) the quantities of menthol in [tobacco product manufacturers'] products are trade secrets, and [tobacco product manufacturers] (including Intervenors) consider such information to be trade secrets, and (b) the requested information also constituted confidential commercial information."
   
• Exemption 3:  "After carefully considering the matter [of whether defendant's use of Exemption 3 was proper], the Court answers this question in the affirmative, as to 21 U.S.C. § 387f(c)."  The court relates that defendant argues that it "properly withheld the Ingredient Listings (i.e., information submitted to FDA as required by 21 U.S.C. § 387d[a][1] ) pursuant to FOIA Exemption 3 because (a) 21 U.S.C. § 387f(c) and 21 U.S.C. § 331(j) each qualify as withholding statutes, and (b) the Ingredient Listings fall within the scope of those statutes for the same reasons that they meet the criteria of FOIA Exemption 4 (that is, the Ingredient Listings are trade secret and confidential commercial information)."