White Coat Waste Project v. VA, No. 17-1155, 2020 WL 1156870 (D.D.C. Mar. 10, 2020) (Sullivan, J.)

White Coat Waste Project v. VA, No. 17-1155, 2020 WL 1156870 (D.D.C. Mar. 10, 2020) (Sullivan, J.)

Re:  Request for records concerning publicly-funded canine experiments at VA's facilities

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's cross-motion for summary judgment

• Litigation Considerations, Waiver of Exemptions in Litigation:  First, while the court agrees with plaintiff that "'[n]owhere in the 283 pages of animal protocols that the [VA] produced does it identify even a single redaction based on Exemption 5' and the VA's 'Vaughn index does not identify even a single Exemption 5 assertion[,]'" the court notes that "the VA asserted Exemption 5 at the administrative level, and the VA points out that one of the agency's declarants avers that the VA withheld the names of the principal investigators and other research personnel under Exemption 5."  The court finds that "'[t]he exemption only need be raised at a point in the district court proceedings that gives the court an adequate opportunity to consider it' . . . ."
  
  Second, "[a]lthough [plaintiff] is correct that the VA raised the [Federal Technology Transfer Act ("FTTA")] for the first time in its reply brief as a basis for withholding the title of [a single animal research protocol], the VA asserted the FTTA to withhold information in [its] declaration and the Vaughn index . . . ."  "The Court finds that the VA did not waive any arguments based on the FTTA because [plaintiff] had an opportunity to respond to the VA's arguments in its reply brief."
   
• Exemption 5, Deliberative Process Privilege:  "[T]he Court is persuaded by [plaintiff's] next argument that the names of the principal investigators are neither pre-decisional nor deliberative."  The court finds that "the VA fails to demonstrate how the principal investigators' names 'implicate any deliberative process that may have gone into the creation of [each protocol] as a whole' . . . ."  The court finds that "the names of the principal investigators neither reflect an 'exercise of judgment as to what issues' should bear on the research, nor involve the selection of facts as part of the agency's deliberative process." The court finds that "[t]he names of the principal investigators conducting the experiments . . . are 'indisputably "factual,"' and those names 'cannot be described as the "materials embodying officials’ opinions."'"  Responding to defendant's argument, the court finds that "the VA has not carried its burden of demonstrating that disclosure of the principal investigators' names 'is likely in the future to stifle honest and frank communication within the agency.'"
   
• Exemption 6 & Litigation Considerations, Vaughn Index/Declaration:  "The Court . . . finds that the release of the names would not 'constitute a clearly unwarranted invasion of personal privacy.'"  The court first finds that "the VA clears the first hurdle in this case because Exemption 6 protects 'bits of personal information, such as names' . . . ."  Second, regarding the privacy interests at issue, the court agrees with plaintiff "that [defendant's] declaration and the PowerPoint presentation raise various evidentiary issues that are left unaddressed by the VA."  The court relates that "[defendant's declarant] attests that his 'statements . . . in [the] declaration are made on the basis of [his] personal knowledge of the following incidents and upon [his] review of information available to [him] in [his] official capacity.'"  "The VA argues that 'the . . . Declaration details a series of threatening incidents in recent history where [plaintiff], the media, and other advocacy groups used personally identifiable and private information to target [the VA's] labs . . . [in Richmond, VA] [and] other researchers across the country.'"  "But [plaintiff] contends – and the Court agrees – that [defendant's declarant] testifies about incidents without explaining the basis for his personal knowledge."  Third, regarding the public interests at state, the court agrees with plaintiff "that the disclosure of 'the principal investigators' names would help hold individual investigators and the VA accountable for their conduct, encourage the investigators' compliance with the animal research protocols, and allow the public and WCW [to] evaluate the [VA's] compliance and responses to the public and Congressional concern surrounding the facility’s dog experiments.'"  "Contrary to the VA's assertion that there is no public interest here, . . . the experiments . . . have garnered extensive media coverage about the canine research . . . ."  "Furthermore, an incident report revealed that one of the researchers conducting a . . . dog experiment 'showed "reckless behavior" and "lack of foresight" after cutting open a dog's lung during a heart surgery.'"  The court concludes that "[o]n balance, the public interest outweighs the asserted privacy interests of the principal investigators."
   
• Exemption 3:  "The Court . . . finds that the VA appropriately redacted the information at issue pursuant to Exemption 3."  The court relates that "the VA invokes two withholding statutes pursuant to Exemption 3:  (1) 35 U.S.C. § 205, which protects confidential information related to patents; and (2) 15 U.S.C. § 3710a, which protects confidential information within cooperative research and development agreements."  First, "[t]he Court . . . finds that the VA has not met its burden of demonstrating that the title of [a single animal research protocol] is exempt from disclosure under 35 U.S.C. § 205."  The court relates that "[t]he parties agree that 35 U.S.C. § 205 is a qualifying statute under Exemption 3."  "The VA, however, falls short of providing a 'relatively detailed justification, specifically identifying the reasons why' Exemption 3 applies to the information purportedly covered under Section 205."  "Section 205 covers information prior to the filing of a patent application for a reasonable time, 35 U.S.C. § 205, but the patent has already been filed because the VA's declarant avers that the patent is pending."  Second, the court finds that "[t]he VA's declaration supports its invocation of the [Federal Technology Transfer Act ("FTTA")] as the exempting statute to withhold the title of the [single animal research protocol]."  The court finds that "[plaintiff] does not dispute that the FTTA satisfies the withholding criteria under Exemption 3."  "The VA argues – and the Court agrees – that Section 3710a(c)(7)(A) gives the agency 'no discretion to release any commercial and confidential information obtained from the [cooperative research and development agreement's] private sector partner.'"  "According to the VA's declarant, '[t]here is a cooperative research and development agreement . . . in place for [the single animal research protocol].'"  "And the VA's declarant avers that 'release of [the title of [the single animal research protocol]] would reveal a new and innovative process to treating a disease'" and "[s]uch information cannot be disclosed under the FTTA."