Court filing

FDA brief in advance of scheduling conference — PHMPT v. FDA

Filed December 6, 2021 in Public Health and Medical Professionals for Transparency v. Food and Drug Administration; one of 30 filings from this case.

Record facts

Court	UNITED STATES DISTRICT COURT
Filed	2021-12-06

UNITED STATES DISTRICT COURT · No. 4:21-cv-01058-P · Doc. 22 · 2021-12-06 · Docket on CourtListener

Full text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
____________________________________

)
PUBLIC HEALTH AND MEDICAL
)
PROFESSIONALS FOR

)
TRANSPARENCY,

)
)
Plaintiff,

)
)
v.

)
Civil Action No. 4:21-cv-01058-P
)
UNITED STATES FOOD AND DRUG
)
ADMINISTRATION,

)
)
Defendant.

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___________________________________ )

DEFENDANT’S BRIEF IN ADVANCE OF SCHEDULING CONFERENCE

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TABLE OF CONTENTS
LEGAL BACKGROUND………………………………………………………………………...1
FACTUAL BACKGROUND…...……………………………………………………….…...…...3
I.
Plaintiff’s FOIA Request………………………………………………………….3
II.
The Parties’ Negotiations Concerning a Processing Schedule……………………4
III.
Plaintiff’s Priority List…………………………………………………………….4
IV.
FDA’s Productions of Records to Plaintiff………………………………………..5
V.
FDA’s Upcoming Production of Records to Plaintiff……………………………...7
FDA’S UPDATED PROPOSAL FOR A PROCESSING SCHEDULE………………………….8

ARGUMENT……………………………………………………………………………………...9

CONCLUSION…………………………………………………………………………………..13

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TABLE OF AUTHORITIES
Cases
Blakeney v. FBI, No. 17-cv-2288 (BAH), 2019 WL 450678 (D.D.C. Feb. 5, 2019)……………13
Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180 (D.C. Cir. 2013)…………..1
Colbert v. FBI, No. 16-CV-1790 (DLF), 2018 WL 6299966 (D.D.C. Sept. 3, 2018)…………...13
Color of Change v. Dep’t of Homeland Sec., 325 F. Supp. 3d 447 (S.D.N.Y. 2018)…………...13
Cooper Cameron Corp. v. U.S. Dep’t of Labor, 280 F.3d 539, 543 (5th Cir. 2002)……………...1
Daily Caller v. Dep’t of State, 152 F. Supp. 3d 1 (D.D.C. 2015)…………………………2, 10, 12
Davis v. Dep’t of Homeland Sec., No. 11-cv-203 (ARR) (VMS),
2013 WL 3288418 (E.D.N.Y. June 27, 2013)…………………………………………...13
Dep't of Air Force v. Rose, 425 U.S. 352 (1976)………………………………………………….1
Elec. Privacy Info. Ctr. v. Dep’t of Justice, 15 F. Supp. 3d 32 (D.D.C. 2014)…………………..12
F.B.I. v. Abramson, 456 U.S. 615 (1982)……………………………………………………..…10
Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356 (2019)……….……………………….2
Nat’l Sec. Counselors v. Dep’t of Justice, 848 F.3d 467 (D.C. Cir. 2017)………………………12
Republican Nat’l Comm. v. Dep’t of State, No. 16-cv-486,
2016 WL 9244625 (D.D.C. Sept. 16, 2016)……………………………………………..13

Statutes and Regulations
5 U.S.C. § 552……………………………………………………………………………….passim
18 U.S.C. § 1905…………………………………………………………………………………..2
21 U.S.C. § 331(j)…………………………………………………………………………………2
21 C.F.R. § 20.61………………………………………………………………………………….2
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21 C.F.R. § 20.63………………………………………………………………………………….2
21 C.F.R. § 601.51………………………………………………………………………………...3
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Pursuant to the Court’s Order of November 18, 2021, ECF No. 21, Defendant, the U.S.
Food and Drug Administration (“FDA”), respectfully submits this brief and attached appendix to
assist the Court in setting a schedule for the processing of records responsive to Plaintiff’s
Freedom of Information Act (“FOIA”) request.
LEGAL BACKGROUND
The Freedom of Information Act provides that any person has a right to obtain access to
federal agency records subject to the Act, except to the extent that any portions of such records
are protected from public disclosure by one or more of nine exemptions listed in the Act. See 5
U.S.C. § 552 (a)(3), (a)(4)(B), (b), (c); see also Dep't of Air Force v. Rose, 425 U.S. 352, 362–65
(1976) (stating that FOIA “assure[s] public access to all governmental records whose disclosure
would not significantly harm specific governmental interests”). Under FOIA, a person may
submit a request to a federal agency “reasonably decrib[ing]” records that s/he seeks to obtain. 5
U.S.C. § 552(a)(3)(A). An agency that has received a FOIA request is required, as relevant here,
to “determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the
receipt of any such request whether to comply with such request.” Id. § 552(a)(6)(A)(i). FOIA
further provides that a requester “shall be deemed to have exhausted his administrative remedies
with respect to such request if the agency fails to comply with the applicable time limit
provisions.” Id. § 552(a)(6)(C)(i).
FOIA’s 20-working-day time period does not create a deadline for production. Citizens
for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180, 189–90 (D.C. Cir. 2013).1 Rather,
“if the agency does not adhere to FOIA’s explicit timelines, the ‘penalty’ is that the agency
cannot rely on the administrative exhaustion requirement to keep cases from getting into court.”

1 Courts often rely on case law concerning FOIA from the D.C. Circuit, as it is “the federal appellate court with the
most experience in this field.” Cooper Cameron Corp. v. U.S. Dep’t of Labor, 280 F.3d 539, 543 (5th Cir. 2002).
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Id. No other provision in FOIA creates a specific timeframe for the release of records. See 5
U.S.C. §§ 552(a)(3)(A) (an agency shall make records responsive to a proper request “promptly
available”), (a)(6)(C)(i) (same for litigated cases).
Indeed, the time required to process a FOIA request will inherently depend on the scope
of the request and the nature of the information the requested records contain. Federal law
generally prohibits the release of certain types of information, such as trade secrets and personal
medical information. See 21 U.S.C. § 331(j); 18 U.S.C. § 1905; 21 C.F.R. §§ 20.61, 20.63.
Consistent with these obligations to protect sensitive information, FOIA exempts several types of
information from its production requirements. 5 U.S.C. § 552(b); see Food Mktg. Inst. v. Argus
Leader Media, 139 S. Ct. 2356, 2366 (2019) (“FOIA expressly recognizes that ‘important
interests [are] served by [its] exemptions,’ and ‘[t]hose exemptions are as much a part of
[FOIA’s] purpose[s and policies] as the [statute’s disclosure] requirement.’” (brackets in
original) (quoting FBI v. Abramson, 456 U.S. 615, 630–631 (1982); Encino Motorcars, LLC v.
Navarro, 138 S. Ct. 1134, 1142 (2018))). As particularly relevant to this case, FOIA Exemption
4 permits withholding of “trade secrets and commercial or financial information obtained from a
person and [that are] privileged or confidential.’” 5 U.S.C. § 552(b)(4). And Exemption 6
permits agencies to withhold or redact “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(6). To ensure protection of this information and other information that is
exempt from disclosure under FOIA, government agencies must carefully review all records and
redact exempt information before the records are released to the FOIA requester. See Daily
Caller v. Dep’t of State, 152 F. Supp. 3d 1, 14 (D.D.C. 2015) (stating that the government has a
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“responsibility” when processing FOIA requests to “safeguard[] potentially sensitive
information”).
FACTUAL BACKGROUND
I.
Plaintiff’s FOIA Request
On August 27, 2021, FDA received a FOIA request from Plaintiff seeking “all data and
information for the Pfizer Vaccine enumerated in 21 C.F.R. § 601.51(e) with the exception of
publicly available reports on the Vaccine Adverse Events Reporting System.” Ex. A (Decl. of
Suzann Burk) ¶ 24 (hereinafter “Burk Decl.”) (App011).2 Because the regulation cited by
Plaintiff, 21 C.F.R. § 601.51, addresses “data and information in applications for biologics
licenses,” FDA interpreted Plaintiff’s FOIA request as a request for all publicly releasable
information in the original biologics license application (“BLA”) submitted by BioNTech-Pfizer
for the Comirnaty vaccine with internal file number STN 125742/0/0 (“original Comirnaty
BLA”). Id. ¶ 25 (App011–12).
Based on FDA’s initial assessment of the number of records potentially responsive to
Plaintiff’s FOIA request, FDA determined that the original Comirnaty BLA requested by
Plaintiff comprises more than 329,000 pages of records. Id. (App012). In addition to those
329,000 pages, the original Comirnaty BLA includes data files in a format similar to a
spreadsheet for which a page count cannot readily be determined. Id. (App012). FDA has
assessed that the original Comirnaty BLA contains at least 126 of these data files. Id. (App012).
Many of those data files themselves are very large, containing dozens of columns and over ten
thousand rows of data. Id. (App012).

2 Pursuant to this Court’s Motion Practice standard II.C., the portions of the appendix relied upon are underlined.
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II.
The Parties’ Negotiations Concerning a Processing Schedule
After Plaintiff filed its Complaint, ECF No. 1, and FDA filed its answer, ECF No. 14, the
parties engaged in negotiations concerning a schedule for the processing and production of the
non-exempt portions of records responsive to Plaintiff’s FOIA request.3

To assist in negotiations and to assist Plaintiff in prioritizing certain records for
processing and production, FDA provided two lists to Plaintiff revealing the (non-confidential)
titles of sections of the original Comirnaty BLA. Burk Decl. ¶ 26 (App013). Those two lists,
which served as something analogous to an index to certain sections of the original biological
license application, totaled nearly 90 pages. Id. (App013). Where feasible and as a courtesy,
FDA also annotated portions of the longer list (hereinafter, the “Index”) with approximate page
counts per section of the original Comirnaty BLA to assist Plaintiff in identifying documents for
priority processing. See Ex. B (Index) (App022–108).
Once subsequent discussions revealed that Plaintiff was most interested in Section 5.2 of
the original Comirnaty BLA and the raw data contained in Section 5.3 of the original Comirnaty
BLA, FDA searched its system for those sections to evaluate their size and scope. Burk Decl.
¶ 26 (App013). FDA assessed that Sections 5.2 and 5.3 comprise more than 321,000 pages of
records (plus additional data files) and requested that Plaintiff use the provided Index to
prioritize the production of certain records. Id. (App013).
III.
Plaintiff’s Priority List
On November 4, 2021, Plaintiff provided FDA with the below list of records they
requested FDA prioritize for processing (“Plaintiff’s Priority List”) in order of priority:
1.
CRFs for site 1055 (from page 27 of the provided Index)

3 These negotiations were described in detail in the parties’ two joint reports. See ECF Nos. 18, 20. Only the
negotiations relevant to FDA’s current processing proposal are repeated in this filing.
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2.
CRFs for site 1081 (from page 31 of the provided Index)
3.
CRFs for site 1096 (from page 38 of the provided Index)
4.
CRFs for site 1128 (from page 46 of the provided Index)
5.
Program Files/SAS files. Plaintiff requested 3 to 4 SAS files as a sample, in the
first instance, so that it could assess whether it would like to prioritize the complete universe of
SAS files. (from page 10 of the provided Index)
6.
Section 5.2 of the original Comirnaty BLA – Tabular Listing of all Clinical
Studies (from page 1 of the provided Index)
7.
Section 4 of the original Comirnaty BLA – Nonclinical Study Reports (from page
1 of the provided Index)
8.
Section 5.3.6 of the original Comirnaty BLA – Reports of Postmarketing
Experience (from page 2 of the provided Index)
9.
Section 16.1.1 of the original Comirnaty BLA – Protocol and/or Amendment, and
specifically, Final Analysis Interim Independent Oversight Committees (from page 3 of the
provided Index)
10.
In the Analysis Datasets (ADaM) Section -- the Analysis Data Reviewers Guide,
Analysis Dataset Definition, and Analysis Dataset Definition Stylesheet (from page 6 of the
provided Index)
11.
Tabulation Datasets (from page 11 of the provided Index)
12.
CRFs for site 1085 (from page 33 of the provided Index)
Ex. C (Emails from Aaron Siri to Courtney Enlow) (Nov. 4, 2021)) (App122). Government
counsel proposed that FDA process certain documents on Plaintiff’s priority list by November 17
and December 1, 2021, with the parties to confer after December 1 regarding future productions.
Plaintiff rejected that proposal.
IV.
FDA’s Productions of Records to Plaintiff
Although Plaintiff rejected FDA’s production proposal, FDA nevertheless has been
working to process and produce the non-exempt portions of records from Plaintiff’s Priority List.
FDA completed its proposed November 17 and December 1 productions. Burk Decl. ¶ 27
(App013–14). Specifically, on November 17, 2021, FDA produced all publicly releasable
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information from the following:
• A portion of Plaintiff’s priority item #5:
o One .txt file; and
o One SAS (data) file;4
• A portion of Plaintiff’s priority item #6:
o From Section 5.2 of the original Comirnaty BLA: The Tabular Listing;
o From Section 5.2 of the original Comirnaty BLA: The Listing of Clinical Sites;
• Plaintiff’s priority item #8:
o From Section 5.3.6 of the original Comirnaty BLA: The Reports of Postmarketing
Experience.
Id. (App013–14). This production amounted to 91 pages of records, as well as the two data files
(the .txt and SAS files). FDA redacted material from the 91 pages under FOIA Exemptions 4
and 6 to protect the disclosure of trade secrets and commercial or financial information that was
obtained from a person outside the government and that is privileged or confidential and to
protect personal privacy. Because FDA assessed that there was no exempt material in the data
files included in this production, FDA made no deletions or redactions to those files.
On December 1, 2021, FDA made a second release. Burk Decl. ¶ 27 (App014–15).
Specifically, FDA produced publicly releasable information from the remainder of Section 5.2 of
the original Comirnaty BLA to Plaintiff, making redactions under FOIA Exemption 6 to protect
personal privacy. With this 248-page production, FDA completed processing and production of
item 6 on Plaintiff’s Priority List. Thus, as of the time of this filing, FDA has produced to

4 In communications between FDA and Plaintiff, Plaintiff indicated that it was interested in obtaining “sample” SAS
files, but none of the files Plaintiff identified in its priority list was an SAS file. Instead, Plaintiff identified .txt files
that included “SAS” in their file names. In an attempt to provide Plaintiff with the information it requested, FDA
produced one of the .txt files Plaintiff requested, as well as one xpt (SAS) file even though Plaintiff did not
specifically prioritize any SAS files in its priority list. As a result, FDA’s November 17, 2021, production included
more records than FDA initially proposed. Burk Decl. ¶ 27 n.5 (App013).
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Plaintiff the non-exempt portions of 339 pages, as well as two data files, and has completed
processing and production of two items on Plaintiff’s Priority List (items 6 and 8).
V.
FDA’s Upcoming Production of Records to Plaintiff
Since the time the parties filed their Second Joint Report, ECF No. 20, FDA has had an
opportunity to assess the amount of time it will take to review additional records on Plaintiff’s
Priority List and has determined that it can complete processing of certain records at a pace faster
than the previously proposed 500-pages-per-month rate.5 See Burk Decl. ¶¶ 27–29 (App014–
16). Accordingly, by December 13, 2021, FDA anticipates producing publicly releasable
information from the following:
• All documents related to Plaintiff’s priority item #1 – CRF files for site 1055
(approximately 2,030 pages);

• All remaining documents related to Plaintiff’s priority item #5 –

o Four additional .txt files that were listed on page 10 of the Index;

o Four additional SAS files (not specifically listed on Plaintiff’s priority list, but
Plaintiff has expressed interest in these files during the course of negotiations).

• Publicly releasable information from the following additional sections of the original
Comirnaty BLA:

o Section 2.5 – Clinical Overview (approximately 333 pages)

o Section 2.7.3 – Summary of Clinical Efficacy (approximately 182 pages)

o Section 2.7.4 – Summary of Clinical Safety (approximately 344 pages)
Id. ¶ 27 (App014–15).
Thus, by the time of the Court’s status conference on December 14, 2021, FDA
anticipates that it will have produced to Plaintiff more than 3,000 pages of responsive materials,

5 In light of FDA’s assessment, on December 1, 2021, undersigned counsel informed Plaintiff’s counsel of FDA’s
updated proposed processing schedule (as set forth here and below) and asked if Plaintiff would be amenable to the
proposed schedule. As of the time of this filing, Plaintiff has not indicated whether it would accept this proposal.
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most of which were listed on Plaintiff’s Priority List. Id. (App015). Moreover, FDA will have
completed processing and production of four items on Plaintiff’s Priority List (items 1, 5, 6, and
8). Id. (App013–15).
FDA’S UPDATED PROPOSAL FOR A PROCESSING SCHEDULE
In addition to the December 13 production, FDA expects to be able to produce the next
three items on Plaintiff’s Priority List (items 2, 3, and 4) before the end of January 2022. Burk
Decl. ¶ 28 (App015–16). FDA proposes to produce the below records to Plaintiffs according to
the following schedule:
• Thursday, December 30, 2021: FDA proposes to produce publicly releasable information
from Plaintiff’s priority item #2 – CRF files for site 1081 (approximately 3,380 pages);
• Tuesday, January 18, 2022: FDA proposes to produce publicly releasable information
from Plaintiff’s priority item #3 – CRF files for site 1096 (approximately 2,937 pages); and
• Monday, January 31, 2022: FDA proposes to produce publicly releasable information
from Plaintiff’s priority item #4 – CRF files for site 1128 (approximately 3,452 pages).
Id. (App015).
If the Court adopts this schedule, by the end of January 2022, FDA will have produced
publicly releasable information from more than 12,000 pages of records and 10 unpaginated .txt
or SAS data files. Id. (App015). Moreover, FDA will have completed production of seven of
the first eight items on Plaintiff’s Priority List (items 1, 2, 3, 4, 5, 6, and 8). Id. (App015–16).
Because FDA has not yet had an opportunity to assess the amount of time it will take to
process other records responsive to Plaintiff’s FOIA request, following the January 31, 2022
production, FDA proposes to make one production at the end of each subsequent month totaling
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a minimum of 500 pages.6 Id. ¶ 29 (App016). FDA’s general estimate is that it takes
approximately 8 minutes per page to review records for a FOIA production. Id. ¶¶ 18, 29
(App007, App016). It is difficult for FDA to know whether records will take more or less than
the estimated eight minutes per page until reviewers have had an opportunity to perform at least
a preliminary review of those records. Id. ¶¶ 18, 29 (App007–08, App016). Certain records will
likely include more confidential information, and thus more corresponding redactions, which
will require more research and production time. Id. ¶¶ 18, 29 (App007, App016). Once FDA
has an opportunity to assess processing times for other records responsive to Plaintiff’s FOIA
request, FDA may be able to process and produce the non-exempt portions of records to Plaintiff
at a rate faster than 500 pages per month. Id. ¶ 29 (App016). Thus, although FDA proposes a
minimum rate of 500 pages a month after the January 31, 2022 production, FDA will produce
records at a faster rate where feasible. Id. (App016).
ARGUMENT
FDA’s Processing Schedule is Reasonable and Fair to All Requesters

As demonstrated below, the Court should adopt FDA’s proposed schedule because it
properly balances the interest of Plaintiff in receiving records responsive to its FOIA request
with the interests of the vaccine sponsor in the protection of its confidential information, the
interests of clinical trial participants in the protection of their personal privacy information, and
the interests of other FOIA requesters whose requests are being processed alongside Plaintiff’s.
The proposed schedule is also feasible for FDA to complete with its limited processing resources
and is not only consistent with processing schedules entered by other courts, but would in fact

6 For purposes of calculating a “page count” of data records that are not paginated, FDA proposes considering
twenty lines of spreadsheet data the equivalent of one page. For example, production of a spreadsheet containing
2,000 lines of data would be counted the equivalent of a 100-page PDF record.
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result in the FDA producing records to Plaintiff at a rate much faster than most courts order.

First, FDA’s proposed schedule properly addresses the interest of Plaintiff in receiving
records because the schedule would result in production of the non-exempt portions of more than
12,000 pages of records and 10 unpaginated .txt or SAS data files to Plaintiff in less than two
months from the date of the scheduling conference. Burk Decl. ¶ 28 (App015). Moreover, this
schedule would result in the expedited production of seven of the twelve items on Plaintiff’s
Priority List (items 1, 2, 3, 4, 5, 6, and 8). Id. (App015–16).

In addition, FDA’s proposed schedule provides FDA adequate time to assess whether
records contain material that is exempt from production under FOIA and redact that exempt
information. Plaintiff has requested records that comprise information submitted by the vaccine
sponsor (Pfizer-BioNTech) to FDA. Id. ¶ 24 (App011). From FDA’s experience with other
similar FOIA requests, such records can be expected to contain both confidential business and
trade secret information of Pfizer or BioNTech and personal privacy information of patients who
participated in clinical trials. Id. ¶ 36 (App019–20). FDA is required to protect certain
information under the law and this type of information is exempt from production under the
FOIA. See 5 U.S.C. § 552(b)(4), (b)(6); F.B.I. v. Abramson, 456 U.S. 615, 621 (1982)
(“Congress realized that legitimate governmental and private interests could be harmed by
release of certain types of information and provided nine specific exemptions under which
disclosure could be refused.”); see also Burk Decl. ¶ 9 (App004). To ensure protection of this
information, and other information subject to withholding under the FOIA exemptions, FDA
must carefully review and, if necessary, redact exempt information on a line-by-line basis. See
Burk Decl. ¶¶ 11, 13, 34 (App005, App006, App0018–19); see also Daily Caller, 152 F. Supp.
3d at 14. Moreover, if FDA determines not to withhold information that might be confidential
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commercial information, it is sometimes required by regulation to provide notice to the company
that submitted the information and an opportunity to file a claim for injunctive relief (a “reverse
FOIA” claim). See, e.g., 21 C.F.R. §§ 20.47, 20.48, 20.61(e).
FDA has assessed it can conduct this necessary review at a faster rate than normal for the
12,000 pages and 10 data files that comprise FDA’s proposed productions through January 31,
2022. Burk Decl. ¶ 28 (App015). But FDA has not yet had a chance to make an assessment
concerning the time it will take to review records after the proposed January 31, 2022
production. Id. ¶ 29 (App016). FDA is therefore relying on its standard rate of 8 minutes per
page for review to propose a processing rate of 500 pages per month for subsequent productions.
Id. (App016).
Furthermore, FDA’s proposed schedule adequately protects the interests of other FOIA
requesters. FDA, and specifically, the Center for Biologics Evaluation and Research (“CBER”),
which maintains the records requested by Plaintiff, has 459 pending FOIA requests. Id. ¶ 22
(App010). Of the 459 requests pending before CBER, approximately 329 were received before
Plaintiff’s. Id. ¶ 22 (App010). Many of these new requests, including the request at issue in this
case, have sought large amounts of data that require significant resources to process. Id. ¶ 21
(App009). The branch responsible for processing FOIA requests for CBER-maintained
documents, CBER’s Access Litigation and Freedom of Information Branch, has ten staff
members – one branch chief and nine full-time staff members.7 Id. ¶¶ 4, 31, 35 (App003,
App007, App019). Two of those members began working for the office within the last four
months and, because they are new staff members, they are not yet able to review records at the
same rate as more experienced staff members. Id. ¶ 31 n.7 (App017).

7 Along with processing FOIA requests, these ten staff members are also responsible for helping to address non-
FOIA litigation-related document requests.
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FDA is not able to commit to processing Plaintiff’s request at a faster rate than the 12,000
pages and 10 data files by January 31, 2022, and 500 pages per month thereafter, without
diverting significant resources away from the processing of other FOIA requests that are also in
litigation, requests that are ahead of Plaintiff’s in CBER’s processing queues, as well as other
non-FOIA record requests (such as, for example, document review to respond to discovery
requests and third-party subpoenas). Id. ¶¶ 5, 8, 17, 36 (App003, App004, App007, App019–
20). Such diversion would adversely impact FDA’s ability to meet stipulated document
processing deadlines and would be fundamentally unfair to other FOIA requesters, the majority
of whom submitted their FOIA requests before Plaintiff and who likely believe, as Plaintiff does,
that their FOIA request is important and needs to be processed expeditiously. See id. ¶ 22
(App010–11); see also Elec. Privacy Info. Ctr. v. Dep’t of Justice, 15 F. Supp. 3d 32, 47 (D.D.C.
2014) (denying motion for preliminary injunction requesting immediate production of documents
pursuant to FOIA request and noting that allowing the plaintiff “to jump to the head of the line
would upset the agency’s processes and be detrimental to the other expedited requesters”); Daily
Caller, 152 F. Supp. 3d at 14 (stating that “the plaintiff’s effort to jump to the head of the FOIA
processing line would work a significant burden on both the agency and numerous interested
parties”).
Finally, FDA’s proposed schedule that will result in production of the non-exempt
portions of more than 12,000 pages and 10 data files by January 31, 2022, and 500 pages per
month thereafter, Burk Decl. ¶ 28 (App015–16), is a processing rate that is much faster than
other courts have ordered. As the D.C. Circuit has recognized, an agency’s policy of processing
500 pages per request per month “serves to promote efficient responses to a larger number of
requesters.” Nat’l Sec. Counselors v. Dep’t of Justice, 848 F.3d 467, 471–72 (D.C. Cir. 2017).
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Numerous other courts have entered processing schedules requiring production of the non-
exempt portions of 500 pages per month. See, e.g., Blakeney v. FBI, No. 17-cv-2288 (BAH),
2019 WL 450678, at *2 (D.D.C. Feb. 5, 2019); Republican Nat’l Comm. v. Dep’t of State, No.
16-cv-486, 2016 WL 9244625, at *1 (D.D.C. Sept. 16, 2016); Color of Change v. Dep’t of
Homeland Sec., 325 F. Supp. 3d 447, 451 (S.D.N.Y. 2018); Davis v. Dep’t of Homeland Sec.,
No. 11-cv-203 (ARR) (VMS), 2013 WL 3288418, at *1 (E.D.N.Y. June 27, 2013). Courts do
not waiver from the standard 500 page per month processing rate even when a FOIA request
would take significant time to process. See, e.g., Colbert v. FBI, No. 16-CV-1790 (DLF), 2018
WL 6299966, at *3 (D.D.C. Sept. 3, 2018) (permitting a processing rate of 500 pages per month
for 71,000 responsive records).

In sum, FDA’s proposed processing schedule is fair to Plaintiff. It results in the non-
exempt portions of 12,000 pages and 10 data files produced to Plaintiff in less than 60 days and
accommodates Plaintiff’s request to prioritize production of numerous records. Burk Decl. ¶ 28
(App015–16). It is fair to the vaccine sponsor and individuals who participated in clinical trials,
as the schedule allows FDA adequate time to review the records for confidential commercial
information and information that would result in an unwarranted invasion of personal privacy.
Id. ¶ 36 (App019–20). And it is fair to other FOIA requesters, who should not be prejudiced
merely because Plaintiff has the resources to file a lawsuit in an attempt to obtain a faster
processing schedule. Id. (App019–20).
CONCLUSION

For the foregoing reasons, Defendant respectfully requests that the Court enter FDA’s
proposed processing schedule.

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Dated: December 6, 2021

Respectfully submitted,

BRIAN M. BOYNTON

Acting Assistant Attorney General

Civil Division

ELIZABETH J. SHAPIRO

Deputy Director

Federal Programs Branch

/s/ Courtney D. Enlow

ANTONIA KONKOLY
Senior Counsel
COURTNEY D. ENLOW (NC Bar No. 46578)
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Room 12102
Washington, D.C. 20005
Tel: (202) 616-8467
Email: courtney.d.enlow@usdoj.gov

Counsel for Defendant

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Case 4:21-cv-01058-P Document 22 Filed 12/06/21 Page 18 of 19 PageID 238

CERTIFICATE OF SERVICE

I hereby certify that on December 6, 2021, I electronically transmitted the foregoing to the
parties and the clerk of court for the United States District Court for the Northern District of Texas
using the CM/ECF filing system.

/s/ Courtney D. Enlow

COURTNEY D. ENLOW
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Room 12102
Washington, D.C. 20005
Tel: (202) 616-8467
Email: courtney.d.enlow@usdoj.gov

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FDA brief in advance of scheduling conference — PHMPT v. FDA

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