Freedom Coal. of Doctors for Choice v. CDC, No. 23-102, 2024 WL 69084 (N.D. Tex. Jan. 5, 2024) (Kacsmaryk, J.)

Freedom Coal. of Doctors for Choice v. CDC, No. 23-102, 2024 WL 69084 (N.D. Tex. Jan. 5, 2024) (Kacsmaryk, J.)

Re:  Request for 7.8 million free-text responses to COVID vaccine safety monitoring program “V-safe” collection

Disposition:  Granting plaintiff’s motion for summary judgment; denying defendants’ cross-motion for summary judgment

• Procedural Requirements, Proper FOIA Requests:  The court relates that “Plaintiff’s request seeks:  ‘All data obtained from v-safe users/registrants f[ro]m the free text fields within the v-safe program for COVID-19 vaccines and the registrant code associated with each free text field/entry. (Note that all records from pre-populated fields, other than registrant code, can be excluded.) Date range: 10/01/2020–12/31/2022.’”  The court finds that “[t]he request is as narrow as possible without compromising the meaningfulness of the request, excludes the already-released check-the-box data, and acknowledges that redacting exempted material may be necessary.”

• Procedural Requirements, “Reasonably Segregable” Obligation:  The court relates that “[t]he parties do not dispute that it would be improper for Defendants to produce any PII present in responses or even what may constitute PII.”  “In fact, Plaintiff’s request contemplated that records would need to be reviewed and redacted.”  “The primary dispute is whether the review, redaction, and production process amounts to an unreasonable burden.”  “More specifically, whether the exempted PII contained within some free-text data is reasonably capable of segregation from the non-exempt remainder.”  “Defendants contend ‘the non-exempt information within the Free-Text Responses is not reasonably segregable, because having to review and redact 7.8 million Free-Text Responses to segregate non-exempt information would impose an unreasonable burden on the agency.’”  “Defendants do not argue that the information is physically incapable of segregation.”  “Rather, Defendants claim they do not have the manpower to comply.”  “Specifically, Defendants aver that the entirety of ‘CDC’s FOIA Office comprises thirteen FOIA analysts who are responsible for responding to all FOIA requests from receipt to completion of any administrative appeal, as well as assisting with any related litigation.’”  “Plaintiff, on the other hand, contends that programs for automated electronic data review are available and capable of minimizing the burden of manual review and, moreover, the task is not as weighty as Defendants describe.”  “In support, Defendants marshal [the] CDC FOIA Officer[’s]. . . declaration. . . wherein he opines that review would take a single analyst 59 years . . . .” 
  
  “Having reviewed [the] declaration, the Court does not find it ultimately persuasive.”  “Instead, this Court finds that production is not unreasonably burdensome for at least four reasons:  (1) the requested records are not so voluminous; (2) only a small percent of records will require any redaction; (3) the redaction process is largely straightforward and capable of automated assistance; and (4) blanket exemption claims covering a mass of records are impermissible.”  First, “[a]ffording Defendants the greatest mathematical latitude by assuming each free-text response utilized the full 250 characters, the 7.8 million free-text responses yields 1,950,000,000 characters.”  “Considering an average page of text – using 12-point Times New Roman font, single spaced, and one-inch margins – an average page contains approximately 3,000–3,276 characters.”  “The 1,950,000,000 characters would yield approximately 595,238–650,000 pages.”  “Considering the COVID-19 vaccine was the largest federal project in recent history, that is not surprising.”  “This Court does not find that – at most – 650,000 pages amounts to an unreasonable burden.”  “Of course, this is likely an excessive overestimation.”  “But in the FOIA context, ‘[t]he district court must analyze all underlying facts and inferences in the light most favorable to the FOIA requester.’”  “The comparable responses from V-safe’s motivation survey averaged a mere 35 characters.”  “Thus, assuming each free-text response is 35 characters like the motivation survey, the total production could be as little as 273,000,000 characters yielding a mere 83,333–91,000 pages.”  “Second, Defendants have marshaled evidence that approximately 7% of responses will contain unsolicited PII.”  “Accordingly, while screening all 7.8 million responses is necessary, approximately 93% will require no redaction at all.”  “Third, the required redactions are not complex or nuanced.”  “Defendants may deploy automated review and redaction of the free-text responses, significantly reducing the workload for Defendants’ analysts.”  “For precisely this reason, Congress passed the Electronic Freedom of Information Act (“E-FOIA”) Amendments.”  “E-FOIA instructs agencies to ‘use new technology to enhance public access to agency records and information.’”  “New technology provides alternative search methodologies that substantially reduce the burden imposed on an agency compared to historic manual review.”  “[T]he technology for automated document review has advanced to largely nullify concerns about manual review and even simple search parameters like name, birthdates, social security numbers, phone numbers, and email addresses – the types of PII at issue here.”  “The automated processes acknowledged by both parties, expressly contemplated by FOIA, and mandated by E-FOIA, are capable of substantially reducing the costs and time required to review and redact for exempted PII.”  “Defendants also aver internal process complicate the matter.”  “First, CDC’s FOIA Office comprises only thirteen analysts.”  “Second, Defendants’ practice entails ‘another manual, line-by-line review’ by ‘either a senior FOIA analyst or Team Lead.’ . . . .”  “While neither Plaintiff nor this Court dispute the Defendants’ alleged allocation of FOIA staff, ‘the number of resources an agency dedicates to such requests does not dictate the bounds of an individual’s FOIA rights.”  “Fourth, Defendants’ decision to withhold all free-text responses because some contain PII is tantamount to an impermissible blanket claim.”  “An agency claiming information is exempt and incapable of reasonable segregation must ‘describe what proportion of the information is non-exempt and how that material is disbursed throughout the document.’”  “To the extent Defendants have particularly described the proportion of affected responses, this Court finds that approximately 7% does not impose an unreasonabl[e] burden[] for simple redactions largely capable of automation.”  “Defendants have withheld all records because some records likely contain some exempt material, and segregation would potentially be very inconvenient, considering Defendants’ understaffed FOIA office.”  “As addressed, this Court does not find that to be the case.”  “Rather, the exempt PII is reasonably capable of redaction, leaving the remaining non-exempt portions of the free-text responses capable of production.”  “Additionally, what remains will not only be intelligible, but precisely what Plaintiff seeks – the health and symptom information without PII like emails or social security numbers.”  “Further, if only 7% of free-text responses contain any PII at all, then the remaining 93% should not be categorically withheld.”  “Therefore, while the burden to review and redact these responses for production may impose a heavy burden on Defendants, this Court does not find that burden to be unreasonable.”
  
  The court also finds that “[b]ecause Defendants structured V-safe to collect health and symptomatic responses for a full year after a vaccine or booster, reviewing that data is of great importance to the public.”  “Production of the free-text data will permit independent researchers to put the government agencies to their proof by considering all of the available data.”
   
• Procedural Requirements, Expedited Processing:  The court relates that “Plaintiff contends that Defendants wrongfully denied its request for expedited processing in the letter dated January 4, 2023.”  “[The] Court agrees.”  “First, Plaintiff is ‘primarily engaged in disseminating information.’”  “The nonprofit entity ‘was formed and exists for the sole purpose of obtaining and disseminating to the public the v-safe free-text data.’”  “Plaintiff is not actively disseminating information to the public because Plaintiff is not yet in receipt of the information it seeks to disseminate.”  “Defendant’s argument renders the subpart meaningless:  a FOIA requester could only be ‘engaged in disseminating information’ when he is actively disseminating information, which presupposes the information is already in his possession.”  “Because the expedited processing analysis precedes production, no requester could qualify unless he is engaged in disseminating other information.”  “Nothing in FOIA or the relevant caselaw supports this reading of the statute.”  “Rather, Plaintiff is ‘engaged in’ obtaining information, an essential step that necessarily precedes the dissemination of same.”  “Second, Plaintiff has shown an urgent need to inform the public about “actual or alleged Federal Government activity’ – namely, related to the health and safety of the COVID-19 vaccines and policies.”
   
• ​​​​​​​Fees and Fee Waivers, Fee Waivers:  The court finds that “Plaintiff is entitled to a waiver of all fees for production.”  “Plaintiff explained that it sought the ‘primary source documentation’ to permit independent research as to ‘the overall safety and efficacy of the COVID-19 vaccines.’”  “Notably, the sample size is massive – representing between 3–4.5% of the vaccinated population – thus permitting particularly accurate research.”  “The V-safe free-text responses will contribute to the public’s understanding of the COVID-19 vaccines – specifically as to the assertion by Defendants, the Biden administration, and others that the vaccine is ‘safe and effective’ for everyone over six months of age – by providing access to the direct source material to treating physicians, researchers, parents, recipients, and non-recipients.”  “‘[D]isclosure of the information will’ permit any interested person to research and report ‘whether CDC properly analyzed the information to detect and evaluate clinically important adverse events and safety issues that impacted its relevant policies or regulatory decisions and recommendations.’”  “Additionally, even if the redacted responses are less useful than extrapolated [standardized medical code] data, a position taken by Defendants, . . . the public nonetheless has the right to check the math.”  “Finally, the information is not in Plaintiff’s commercial interests, as it expects neither to seek nor gain monetarily from the data.”