Henson v. HHS, No. 17-1750, 2018 WL 2994878 (7th Cir. June 15, 2018) (Hamilton, J.)

Henson v. HHS, No. 17-1750, 2018 WL 2994878 (7th Cir. June 15, 2018) (Hamilton, J.)

Re:  Request for records related to premarket approval process for a glucose monitoring system

Disposition:  Affirming district court's grant of summary judgment to defendant

• Litigation Considerations, Jurisdiction and Pleadings:  The Court of Appeals for the Seventh Circuit affirms the district court's dismissal of the agency employees named as defendants, explaining, "the [FOIA] does not authorize suites against the individuals named in [the requester's] complaint."  "An individual employee is not an 'agency' as defined by the [FOIA]."  The court also holds that "the magistrate judge did not err by staying discovery and setting a briefing schedule for summary judgment" and rejected the requester's argument that "the judge's decision constituted an improper order 'directing' the agency to file a motion for summary judgment." 
   
• Litigation Considerations, Adequacy of Search:  The Court of Appeals for the Seventh Circuit holds that "[t]he undisputed facts show here that the agency's search for responsive documents was reasonable."  The agency "searched its database by the premarket-approval number assigned to the glucose monitor[,] had the recipients of [the requester's] letters and [those who met with him] search their files[,] the general counsel searched his files" and "[o]ther documents . . . were identified . . . through a search of files."  The court finds that the requester "has no reasonable basis for suggesting that these were not reasonable efforts to locate responsive documents to his many (and often repetitive) requests."    
   
• Exemption 4: The Court of Appeals for the Seventh Circuit upholds the agency's use of "[E]xemption 4 to withhold 'information relating to the raw material used in the manufacturing process, raw material used in the testing process, and the pump's battery film.'"  The court explains, "[b]ecause there is no evidence that the materials used to make the monitor and the battery film have been made public, there is no reason to doubt that substantial competitive harm could befall the manufacturer if that information were released to the public."
   
• Exemption 5: The Court of Appeals for the Seventh Circuit also upholds the application of Exemption 5 "to the agency's pre-decisional and deliberative documents and communications protected by the attorney-client privilege."  The agency "detail[ed] on an individual basis the topics discussed by the agency’s employees and the purposes for the communications," which the requester "did not contradict."
   
• Exemption 6:  The Court of Appeals for the Seventh Circuit upholds application of Exemption 6 to "medical information about the manufacturer's patients and the contact information for employees of the manufacturer and the agency," stating that "the [FOIA] requires transparency from the government – not the manufacturer's patients and employees."