New Hampshire Right to Life v. HHS, No. 14-1011, 2015 WL 467525 (1st Cir. Feb. 4, 2015) (Kayatta, J.)

New Hampshire Right to Life v. HHS, No. 14-1011, 2015 WL 467525 (1st Cir. Feb. 4, 2015) (Kayatta, J.)

Re: Request for documents prepared in connection with application for grant for family planning services

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

• Exemption 4:  The Court of Appeals for the First Circuit "hold[s] that the Department met its burden to show that Exemption 4 applies to [plaintiff's] submitted documents."  The court relates that "[t]he Department invokes Exemption 4 to prevent disclosing portions of the Manual, a letter describing the Manual, the Fees and Collections Policies, and a document titled 'Steps in Establishing our Fee Schedule.'"  The court "disagree[s]" with plaintiff's argument "that because Planned Parenthood is a non-profit organization, it cannot be said to possess commercial information within the meaning of Exemption 4."  "If accepted, this argument would amount to a per se exclusion of nonprofit entities from protection under Exemption 4."  The court finds that "[a]lthough Planned Parenthood admittedly did not compete for the federal grant in 2011, it certainly does face actual competitors—community health clinics—in a number of different arenas, and in future Title X bids."  "This satisfies the 'actual competition' requirement."  The court then addresses "whether disclosure of those documents would likely cause substantial competitive harm to Planned Parenthood" and finds that "[a] potential future competitor could take advantage of the institutional knowledge contained in the Manual, and the letter describing the Manual, to compete with Planned Parenthood for patients, grants, or other funding."
   
• Exemption 5, Deliberative Process Privilege:  The court is "satisfied that the Department appropriately met its burden for withholding these documents under Exemption 5."  The court notes that "[plaintiff] argues that the documents are not deliberative only because they are not predecisional, so [it] limit[s its] inquiry to whether they are indeed predecisional."  The court finds that "[t]he dispute here centers on the temporal sequence of Department documents and decisions, and on identifying the decisions to which the particular documents relate."  Therefore, the court conducts a review of "the relevant decisional timeline" and finds that the documents are all in fact "predecisional."
   
• Adoption:  The court responds to plaintiff's "claim[] that, by issuing [a] replacement grant, the Department adopted counsel's advice [on the validity of a replacement grant] as 'policy of the Agency.'"  The court notes that "[t]he Department redacted any material that revealed the basis or reasoning behind such advice."  "The Department never publicly announced either the advice or the reasoning behind the advice."  "Nor does it rely on the advice in this litigation."  "Here, the Department never adopted, or even mentioned, counsel's reasoning."  The court holds that "'[m]ere reliance on a document's conclusions'—at most what we have here—'does not necessarily involve reliance on a document's analysis; both will ordinarily be needed before a court may properly find adoption or incorporation by reference.'"