Zirvi v. U.S. Nat'l Insts. of Health, No. 20-7648, 2022 WL 1261591 (D.N.J. Apr. 28, 2022) (Quraishi, J.)

Zirvi v. U.S. Nat'l Insts. of Health, No. 20-7648, 2022 WL 1261591 (D.N.J. Apr. 28, 2022) (Quraishi, J.)

Re:  Request for documents "'reflecting or concerning' plaintiff's allegedly anti-competitive activities"

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

• Exemption 4:  "The Agency Defendants met their burden to show that Exemption 4 applies to the documents redacted or withheld from the [National Cancer Institute's ('NCI')] FOIA response."  "First, the Agency Defendants provided sufficiently detailed affidavits that show that the disputed information was commercial in nature."  "Illumina has a 'commercial interest' in its own manufacturing and design process."  "Second, it is undisputed that NCI received this information from Illumina—satisfying the 'obtained from a person' requirement under Exemption 4."  "Third, the Agency Defendants established that the contested records were 'confidential.'"  "Illumina treated the documents as private when it marked the documents as 'confidential' and required confidentiality agreements before sharing the documents."  "Moreover, the NCI Grants Policy in effect at the time assured grant submitters like Illumina that such information would be kept confidential."
  
  "Exemption 4 also applies to the documents redacted or withheld from the [National Human Genome Research Institute's ('NHGRI')] FOIA response."  "NHGRI officials aver that the disputed records are 'commercial' because Illumina still uses the technical information in its products today."  "As with the NCI request, it is undisputed that the NHGRI obtained the information at issue here from Illumina."  "And finally, the affidavits show that Illumina treated the redacted information as private and provided it to the government under assurances of confidentiality."  "Based on unredacted portions of the grant, Plaintiff argues that the information at issue is too old to be justifiably considered exempt under Exemption 4."  "However, NHGRI's officials claim otherwise and Plaintiff's 'speculation' about the age of the information is not sufficient to overcome the presumption of good faith accorded to agency affidavits." 
  
  "Likewise, the [United States Patent and Trademark Office ('USPTO')] properly determined that Exhibit 2052—the Settlement Agreement—falls under Exemption 4."  "First, the USPTO obtained the Settlement Agreement from the parties to the settlement."  "These corporations qualify as 'person[s]' under Exemption 4."  "Second, the information is 'commercial' or 'financial' because the Settlement Agreement concerns transactional valuation information that could be held against the parties in future."  "Finally, the information is confidential."  "The parties treated the Settlement Agreement as confidential."  "The PTAB granted [the] request [to "classify this information as 'business confidential,'"] and provided an assurance of confidentiality."  "Such assurances encourage prompt settlement of matters before the PTAB, and settlement agreements are customarily kept private in PTAB cases." 
  
  "Finally, Exemption 4 applies to the documents redacted or withheld from the [National Institute of Standards and Technology's ('NIST')] FOIA response."  "NIST obtained the information at issue here from 'person[s]'—Affymetrix and Molecular Dynamics."  "The Department of Commerce avers that the withheld records consist of 'detailed financial and technical data' regarding private companies' 'research and development activities and strategies for potentially valuable commercial technology.'"  "Lastly, the companies provided the information to NIST under an express promise of confidentiality."  "Plaintiff argues that the information is not confidential, because some information contained in the grant proposal has been used in other public filings."  "However, NIST and Affymetrix assert that the specific data at issue here has not been made public."  "In sum, the Court accords the presumption of good faith to the Agency Defendants' assertions and finds that Exemption 4 applies here." 
  
  "Plaintiff urges the Court to apply a 'crime-fraud' exception to the assertion of FOIA exemptions."  "Plaintiff's theory is that Congress did not intend Exemption 4 to shield documents that show the existence of a crime or a fraud."  "The Court declines to apply a 'crime-fraud' exception here."  "'Exemption 4 embodies a congressional determination that the public disclosure of confidential commercial information does outweigh the public interest in disclosure, and it is not the district court's role to second-guess that judgment on a case-by-case basis.'"
   
• Litigation Considerations, Exhaustion of Administrative Remedies:  "Plaintiff concedes that he failed to appeal the NCI FOIA determination."  "Plaintiff argues this failure to appeal should be excused because NCI did not inform Plaintiff that he could appeal the NCI's decision to classify him as a 'commercial-use requestor.'"  "The Court disagrees."  "Here, the NCI's final response letter . . . met [the required] criteria."  "The agency [notified plaintiff] of: (1) 'the right of such person to appeal to the head of the agency, within a period determined by the head of the agency that is not less than 90 days after the date of such adverse determination.'" 
   
• Attorney's Fees:  "The Court finds that Plaintiff is neither eligible for nor entitled to costs here."  "Plaintiff's interest in his FOIA requests is personal and does not implicate matters of public concern."  "Courts have found plaintiffs ineligible where the plaintiff's interest in the requested information is purely personal."  "For the same reason, even if the Court assumed that Plaintiff 'substantially prevailed,' the discretionary entitlement factors counsel against awarding fees."  "Here, there is little public benefit from disclosure; Plaintiff sought commercial benefits from the disclosure; and the government had a reasonable basis for withholding the records."  "This is not a case where the public at large will benefit from the released information."