White Coat Waste Project v. VA, No. 17-2264, 2019 WL 4096989 (D.D.C. Aug. 29, 2019) (Sullivan, J.)

White Coat Waste Project v. VA, No. 17-2264, 2019 WL 4096989 (D.D.C. Aug. 29, 2019) (Sullivan, J.)

Re:  Request for records concerning canine experiments at Louis Stokes Cleveland Veterans Affairs Medical Center in Ohio

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part, denying in part and holding in abeyance in part plaintiff's cross-motion for summary judgment; denying plaintiff's request for in camera inspection

• Exemption 5, deliberative Process Privilege:  "The Court is not persuaded that the principal investigator's name should be shielded under Exemption 5's deliberative process privilege."  The court finds that "the factual material in this case is the principal investigator's name, and the VA has failed to show how the redacted name assisted the agency with the decision-making process."  "[T]he principal investigator's name neither reflects an 'exercise of judgment as to what issues' should bear on the research, . . . nor involves the selection of facts as part of the agency's deliberative process."
   
• Exemption 6:  First, "[t]he Court is persuaded that the principal investigator's name in the protocol falls within the 'similar files' category."  "[T]he Court cannot ignore that the VA's dog experiments, including those at Stokes VAMC, have prompted speculation and generated media attention."  Second, however, "[b]ased on the declarations, the Court is not persuaded that the VA has shown that the 'threat to [the principal investigator's] privacy is real rather than speculative.'"  "The VA may be able to show that the principal investigator at Stokes VAMC has a substantial privacy interest in his or her name to avoid any potential threats or harassment."  "It is undisputed that WCW maintains a Facebook page with a comments section, that WCW asked its supporters on Facebook to contact the VA to express their opposition to dog experiments, and that WCW disseminated photographs of dogs at a VA research facility."  "It is also uncontested that the dog experiments at Stokes VAMC have received media attention."  "But, as explained below, the declarations do not provide a basis for justifying the nondisclosure of the principal investigator's name."  "In this case, the VA 'has established only the speculative potential of a privacy invasion without any degree of likelihood.'"  "The Court directs the VA to provide additional information in the form of supplemental declarations or affidavits as to the principal investigator's privacy interest in withholding his or her name under Exemption 6."
   
• Litigation Considerations, In Camera Inspection:  The court holds that, "[t]o determine whether the VA has already publicly released the principal investigator's name, [plaintiff] requests that this Court conduct an in camera review of the first page of the protocol at issue in the event that the Court finds that there is a substantial privacy interest in the principal investigator's name."  "The Court will not exercise its discretion to review the withheld document."  "Because the Court has directed the VA to provide additional information on the issue of whether there is a substantial privacy interest in the principal investigator's name under Exemption 6, the Court declines to conduct an in camera review or order the production of the protocol at issue."