People for the Ethical Treatment of Animals v. HHS, No. 17-1395, 2020 WL 2849906 (D.D.C. June 1, 2020) (Chutkan, J.)

People for the Ethical Treatment of Animals v. HHS, No. 17-1395, 2020 WL 2849906 (D.D.C. June 1, 2020) (Chutkan, J.)

Re:  Request for records concerning maternal deprivation experiments conducted on rhesus macaques at NIH's facility in Poolesville, Maryland

Disposition:  Granting in part and denying in part defendant's motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration:  The court rejects "[plaintiff's] argu[ment] that NIH's Vaughn index is insufficient because it does not address the 123 pages that NIH eventually deemed non-responsive."  "But non-responsive records are not subject to FOIA's disclosure requirements, and thus the Vaughn index need not include an explanation of their absence."  The court holds that "while it is unusual for an agency to change its findings about responsiveness the day before filing a motion for summary judgment, there appears to be no authority – and [plaintiff] cites none – indicating that such action is prohibited or presumptively suspect."
   
• Litigation Considerations, Adequacy of Search:  The court holds that "NIH's search was adequate."  The court finds that "the three core terms used for all the searches were themselves adequate, and NIH cannot be faulted for augmenting those search terms for some of the searches."  "In addition, 'the fact that different offices used different search terms' does not 'undermine the reasonableness' of [the] search."
   
• Exemption 6:  The court holds that "[plaintiff] has not met its burden of showing a public interest in disclosing the material withheld under Exemption 6, and, having engaged in balancing the private and public interests, the court concludes that releasing this information would constitute a clearly unwarranted violation of privacy."  The court relates that "[u]nder Exemption 6, NIH withheld 'personal email addresses, URLs at the bottom of personal emails which would reveal information about the private email account, personal travel plans, the identity of unpaid outside consultants, and personal details that would identify them.'"  The court holds that "while public access may reduce the privacy interest, it does not eliminate it."  "The fact that information 'is not wholly private does not mean that an individual has no interest in limiting disclosure or dissemination of the information.'"  The court relates that "NIH explains that it 'withheld the URLs out of a concern that someone potentially could use the URLs to access the emails to which they correspond or even the entire email accounts in which those emails are contained.'"  The court holds that "[t]hat description is adequate to show that the URLs contain personally identifying information, and that their disclosure implicates a privacy interest."  "Moreover, [plaintiff] fails to proffer the public interest in disclosing the excluded material, save a general assertion that there is popular interest in the maternal deprivation experiments."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "HHS' motion for summary judgment will be denied as to the material withheld under Exemption 5."  The court relates that defendant withheld "recommendations on steps to take and options to consider in response to a video presented by [plaintiff] to NIH officials relating to maternal deprivation experiments conducted on rhesus macaques at an NIH facility, [plaintiff's] stated intention to start an opposition campaign featuring the video, and [plaintiff's] request to meet with NIH Director Collins prior to launching their opposition campaign."  The court holds that, "[t]hough these communications may be important, they do not constitute 'the process by which policy is formulated,' nor could they 'reasonably be said to reveal an agency's or official's mode of formulating or exercising policy-implicating judgment.'"  "[W]hile the deliberative process privilege may apply to responses to press inquiries and Congressional inquiries, HHS cites to no case in this District, and the court is aware of none, holding that the privilege applies to responses to inquiries from non-profits."  "There are similarities between an agency's response to a press inquiry and an agency's response to a non-profit, but applying the privilege here, to a non-profit's request for a meeting, would certainly expand the scope of Exemption 5.  If the privilege protected the process of responding to such a request, there would be no limiting principle preventing expansion of the privilege to protect the preparation of all agency communication with outside entities."  "The court declines to initiate such an expansion because HHS bears the burden of establishing the privilege by a reasonable certainty, and because Exemption 5 is to be construed 'as narrowly as consistent with efficient Government operation.'"