Memorandum in Support of Summary Judgment Motion — Empower Oversight Whistleblowers & Research v. NIH

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In the United States District Court for the Eastern District of Virginia, Alexandria Division, Empower Oversight Whistleblowers & Research v. National Institutes of Health, Case No. 1:21-cv-1275 (LMB/JFA), Document 37 filed 06/10/22 is the Memorandum of Law in Support of Defendant's Motion for Summary Judgment, with Jessica D. Aber, United States Attorney, and Meghan Loftus, Assistant United States Attorney, as counsel for Defendant. NIH argues it released, in whole or part, close to 2,000 pages of records responsive to two FOIA requests, conducted searches reasonably calculated to lead to responsive records, and appropriately withheld material under the deliberative process and personal privacy exemptions. Plaintiff disputes the adequacy of the searches and the application of exemptions. These are the Defendant's arguments.

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“Memorandum in Support of Summary Judgment Motion — Empower Oversight Whistleblowers & Research v. NIH.” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-vaed-516270-37-0-07865ab957/, SHA-256 c539e5ad5426fdbeb9eb1a182e1f4c35ea929d2b7ff10246d896fca079871578.

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Case 1:21-cv-01275-LMB-JFA Document 37 Filed 06/10/22 Page 1 of 31 PageID# 357

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

EMPOWER OVERSIGHT )
WHISTLEBLOWERS & RESEARCH, )
)
Plaintiff, )
) Case No. 1:21-cv-1275 (LMB/JFA)
v. )
)
NATIONAL INSTITUTES OF HEALTH, )
)
Defendant. )
)
)

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

JESSICA D. ABER
UNITED STATES ATTORNEY

MEGHAN LOFTUS
Assistant United States Attorney
Office of the United States Attorney

Counsel for Defendant

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INTRODUCTION

Plaintiff Empower Oversight Whistleblowers & Research challenges National Institutes of

Health’s (“NIH”) responses to two of its Freedom of Information Act (“FOIA”) requests. NIH has

released, in whole or part, close to 2,000 pages of records responsive to these two requests.

Nonetheless, Plaintiff maintains that NIH failed to adequately conduct its searches and over-applied

statutory exemptions.

Summary judgment should be granted for NIH because it conducted searches reasonably

calculated to lead to responsive records. NIH looked for records related to Plaintiff’s request in

databases where responsive materials are kept in the normal course of business, as well as the emails

of NIH employees likely involved in discussions about Plaintiff’s requested topics. Furthermore,

NIH appropriately withheld materials pursuant to statutory exemptions, 5 U.S.C. § 552(b)(5) and

(b)(6). NIH withheld material on the basis of the deliberative process privilege because the material

was internal, pre-decisional conversations among NIH employees in which they debated how to

respond to inquiries from the public, Congress, and the media, or debates about future agency

action. NIH also withheld certain identifying information of NIH employees and others, under the

personal privacy exemption, as none of that information would shed any light on how NIH

performs its statutory duties. NIH has fulfilled its obligations under FOIA, and this Court should

grant summary judgment in its favor.

STATUTORY AND REGULATORY BACKGROUND

“Congress enacted FOIA, 5 U.S.C. § 552, to permit a policy of broad disclosure of

Government documents in order to ensure an informed citizenry, vital to the functioning of a

democratic society.” Wickwire Gavin, P.C. v. U.S. Postal Serv., 356 F.3d 588, 591 (4th Cir. 2004). “In

enacting the statute, Congress also recognized that legitimate governmental and private interests

could be harmed by release of certain types of information.” Id. Thus, a federal agency must

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generally make its internal records available to the public upon a request, subject to certain

enumerated categories of records that are statutorily exempt from disclosure. Hanson v. U.S. Agency

for Int’l Dev., 372 F.3d 286, 290 (4th Cir. 2004); see also 5 U.S.C. § 552(b). “These exemptions are

designed to safeguard various public interests against the harms that would arise from overbroad

disclosure.” Hanson, 372 F.3d at 290.

An individual seeking the release of records pursuant to FOIA must follow the relevant

agency’s published regulations for making such a request. See 5 U.S.C. § 552(a)(3)(A). To request

records from NIH, a component of the Department of Health and Human Services (“HHS”), a

request must be made in writing to the NIH FOIA officer. 45 C.F.R. § 5.22(a). Per statute, NIH

has 20 business days “to determine . . . whether to comply with such request,” 5 U.S.C. §

552(a)(6)(A), although HHS regulations state that the agency will acknowledge all FOIA requests in

writing within 10 working days, 45 C.F.R. § 5.24(a). NIH must provide its release determination to

the requestor in writing, “including whether any responsive records were located, how much

responsive material was located, whether the records are being released in full or withheld in full or

in part,” fees, and the requestor’s right to seek assistance from the relevant FOIA Public Liaison. Id.

§ 5.28(a).

STATEMENT OF UNDISPUTED FACTS

I. Background on NIH’s FOIA Process

1. NIH is the nation’s medical research agency, seeking to make discoveries that

improve health and save lives. It consists of 27 different components, each with its own research

agenda. Garcia-Malene Decl. (Mar. 30, 2022) ¶ 5 (DEX 1).

2. NIH’s FOIA program is decentralized. Each institute or center has a FOIA staff

dedicated to responding to requests. Requesters can send requests to the relevant institute or center

of interest or to NIH’s Office of the Director (“OD”). Garcia-Malene Decl. ¶ 6.

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3. When a request requires a partial or full denial under a FOIA exemption, or relates

to COVID, the request is transferred to the FOIA staff in the OD. Garcia-Malene Decl. ¶ 8.

4. The FOIA staff in the OD conducts a page-by-page, word-by-word review of all

potentially responsive records to determine whether the record is responsive to the request, whether

the information is publicly available, whether one of the statutory exemptions to FOIA applies, and

whether the record contains the equities of other federal agencies or third-party stakeholders.

During the review process, FOIA staff will consult with HHS program offices, federal agencies, or

any other stakeholders of the records involved, as appropriate. Garcia-Malene Decl. ¶ 7.

5. Once records are finalized, a response letter is prepared detailing the number of

pages processed, the number of pages withheld in part or in full, the number of pages sent for

referral, and the reasons for any withholdings. Garcia-Malene Decl. ¶ 9.

II. Sequence Read Archive (“SRA”)

6. The Sequence Read Archive (“SRA”) is the largest publicly-available repository of

high throughput sequencing data. SRA, NAT’L LIB. OF MED., NAT’L CTR. FOR BIOTECH. INFO.,

available at https://www.ncbi.nlm.nih.gov/sra (last accessed June 8, 2022) (“SRA website”). It is

hosted by the National Center for Biotechnology Information (“NCBI”) at the National Library of

Medicine (“NLM”). Garcia-Malene Decl. ¶ 15.

7. In short, SRA is a data repository. “SRA accepts data from all branches of life as

well as metagenomic and environmental surveys.” SRA website. “SRA stores raw sequencing data

and alignment information to enhance reproducibility and facilitate new discoveries through data

analysis.” Id.

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8. On June 22, 2021, Jesse Bloom, Ph.D., of the Fred Hutchinson Cancer Research

Center, published a manuscript on bioRxiv. 1 In that manuscript, known as a “preprint,” Dr. Bloom

stated that he had identified a data set containing COVID-19 sequences “from early in the Wuhan

epidemic that has been deleted from the NIH’S Sequence Read Archive.” Jesse Bloom, BIORXIV,

Recovery of Deleted Deep Sequencing Data Sheds More Light On The Early Wuhan SARS-CoV-2 Epidemic

(June 22, 2021), https://www.biorxiv.org/content/10.1101/2021.06.18.449051v1.full. Dr. Bloom

recovered the data from Google Cloud. Id. Dr. Bloom later published the preprint in an academic

journal. Jesse D. Bloom, Recovery of Deleted Deep Sequencing Data Sheds More Light on the Early Wuhan

SARS-CoV-2 Epidemic, 38 MOLECULAR BIOLOGY & EVOLUTION 5211 (Dec. 2021).

III. Plaintiff’s FOIA Requests

A. Plaintiff’s FOIA Request 56712

1. Searches

9. On July 15, 2021, NIH received a FOIA request via email, dated July 14, 2021, from

Plaintiff. Plaintiff’s request sought the following NIH records:

1) All communications regarding the request to post the SARS-CoV-2 sequences to the
Sequence Read Archive in March 2020. This request covers all communications between
March 1, 2020 to March 31, 2020.

2) All communications regarding the request to withdraw the SARS-CoV-2 sequences from
Sequence Read Archive in June 2020. This request covers all communications between June
1, 2020 to June 31, 2020.

3) All communications regarding these withdrawn sequences as reported by a preprint titled
“Recovery of deleted deep sequencing data sheds more light on the early Wuhan SARSCoV-
2 epidemic” by Jesse Bloom, a virologist at the Fred Hutchinson Cancer Research Center.
This request covers all communications between Jesse Bloom and the NIH, from January 1,

1
According to its website, “bioRxiv (pronounced “bio-archive”) is a free online archive and
distribution service for unpublished preprints in the life sciences. . . . By posting preprints on
bioRxiv, authors are able to make their findings immediately available to the scientific community
and receive feedback on draft manuscripts before they are submitted to journals.” About, BIORXIV,
available at https://www.biorxiv.org/about-biorxiv (last accessed June 9, 2022).

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2021 and the present. This request covers all communications inside the NIH regarding the
preprint from June 21, 2021 to the present.

4) All communications to, from, and within the NIH press office about the NIH statement
released on June 23, 2021, and about reports that these sequences were removed from
the Sequence Read Archive. This includes all emails related to the drafting of the
statement, communications about the reported removal, and communications with
reporters. This request covers all communications between June 21, 2021 to June 25,
2021.

Garcia-Malene Decl. ¶ 10.

10. NIH assigned Plaintiff’s FOIA request the internal control number 56712 on July 15,

2021. Garcia-Malene Decl. ¶ 12.

11. NCBI normally uses a database for tracking communications between curators and

submitters to NCBI databases, including SRA. In response to Items 1 and 2 of Plaintiff’s FOIA

Request 56712, NCBI searched that database for communications between SRA curators and the

submitter of the withdrawn SARS-CoV2 sequences. That database was selected as a location search

because it houses the type of records Plaintiff sought, that is, anything related to SRA, its curators,

and submitted sequences. The researcher who submitted, and then later withdrew, these sequences

did so under the project identification “PRJNA612766.” As a result, the NCBI team used that

project identification as a search term to pull responsive documents from the database for the dates

requested. Garcia-Malene Decl. (June 10, 2022) ¶ 16 (DEX 2).

12. In response to Item 3, NIH asked Stephen Sherry, Acting Director of NCBI, to

search his Outlook account for responsive emails. As acting Director of NCBI, Dr. Sherry would

have been involved in all communications sought by Plaintiff, i.e., communications related to

sequences, namely, withdrawn sequences, sequencing data related to COVID-19, and Jesse Bloom.

Garcia-Malene Suppl. Decl. ¶ 17.

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13. To conduct his search, Dr. Sherry used the following keywords: “preprint,” “jesse

bloom” and “biorxiv” for the dates requested—the type of publication, author, and publisher,

respectively, for the preprint referenced in Item 3. Garcia-Malene Suppl. Decl. ¶ 18.

14. In addition to Dr. Sherry running the above search, NIH searched the emails of: Dr.

Frances Collins, then-Director of NIH; Dr. Lawrence Tabak, then-Principal Deputy Director of

NIH; Dr. Michael Lauer, Deputy Director for Extramural Research; and John Burklow, then-

Director of the Office of Communications and Public Liaison (“OCPL”) and Acting Chief of Staff

in the OD. The first search used the keywords: “Jesse Bloom” and “Recovery of deleted deep

sequencing data sheds more light on the early Wuhan SARS-CoV2 epidemic.” The second search

used the keyword: “jbloom@fredhutch.org,” Dr. Bloom’s email address. Garcia-Malene Suppl.

Decl. ¶ 19.

15. OCPL searched for emails responsive to Item 4 of Request 56712. OCPL was the

only place searched for Item 4 because Plaintiff specifically designated the NIH press office as the

search location in Plaintiff’s FOIA Request 56712, and OCPL serves as the agency’s “press office.”

Garcia-Malene Suppl. Decl. ¶ 20.

16. To conduct its search, OCPL used the keywords “NIH statement sequence read

archive” for the dates requested. These keywords were used because Item 4 specifically mentioned

communications regarding the NIH statement on SRA. The following OCPL employees searched

their emails: Amanda Fine, Acting Deputy Director of OCPL; Renate Myles, Acting Director of

OCPL; and John Burklow. These individuals were targeted as custodians because they are part of

OCPL leadership and would have been involved in the communications response to Dr. Bloom’s

article. Garcia-Malene Suppl. Decl. ¶ 21.

17. As a result of the searches mentioned in paragraphs 11 through 16, NIH identified,

reviewed, and processed 1,202 pages of records. The records retrieved consisted of draft media

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outreach materials and communications with the researcher/submitter and Dr. Bloom. Garcia-

Malene Suppl. Decl. ¶ 22.

18. Of the 1,202 responsive pages NIH located, NIH released 238 pages to Plaintiff on

February 7, 2022, in their entirety or in part, with information redacted pursuant to FOIA

Exemptions 5 or 6. NIH released the remaining 964 pages, in whole or in part, to Plaintiff on May

13, 2022. Garcia-Malene Suppl. Decl. ¶ 23.

2. FOIA Exemptions

19. Upon reviewing materials for the Vaughn index, NIH realized that even though the

release letter sent to Plaintiff on May 13, 2022 did not specifically mention Exemption 4, Exemption

4, 5 U.S.C. § 552(b)(4), was applied here to withhold the meeting identification and password for a

ZoomGov meeting (this information had already been redacted pursuant to 5 U.S.C. § 552(b)(5)).

The passcode and meeting identification are assigned to a specific individual and are not publicly

available. The release of the passcode and meeting identification would permit Plaintiff to access

future internal meetings, which typically discuss a great deal of commercial information that is

privileged and confidential. Garcia-Malene Suppl. Decl. ¶ 25.

20. The deliberative process privilege (Exemption 5, 5 U.S.C. § 552(b)(5)) was applied

here because much of the internal discussion among NIH staff members regarding the preprint,

sequence submission procedures and policies for the SRA database, and public response strategy are

deliberative and pre-decisional. A public response was published by multiple news outlets after

these internal conversations occurred. Garcia-Malene Suppl. Decl. ¶ 27.

21. Upon reviewing materials for the Vaughn index, the attorney-client privilege

exemption (Exemption 5, 5 U.S.C. § 552(b)(5)) was also applied to one email string (that had already

been redacted under Exemption 5) to protect communications between an NIH employee who

sought advice from the agency’s legal counsel. Garcia-Malene Suppl. Decl. ¶ 29.

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22. Exemption 6, which protects personal privacy, was applied here due to the

heightened public scrutiny with anything remotely related to COVID-19. Consequently, all email

addresses, direct telephone numbers, and identities of the researcher/submitter and NIH database

curators that the researcher/submitter dealt with, have been withheld. Conversely, there is no public

interest in the disclosure of this information. Garcia-Malene Suppl. Decl. ¶ 31.

23. NIH conducted a segregability review of the records released. Following its

segregability review, NIH released the information, withholding only information subject to

Exemptions 4, 5, or 6 of the FOIA and information that was so intertwined with exempt

information that NIH could not reasonably segregate that information. Garcia-Malene Suppl. Decl.

¶ 32.

24. NIH further believes that material withheld, in whole or part, under Exemptions 5

and 6 was not appropriate for discretionary disclosure because of the amount of misinformation

surrounding the COVID-19 pandemic and its origins. In addition, if NIH staff thought that their

viewpoints, suggestions, and advice they offer during internal governmental deliberations on a

charged topic such as the origins of the pandemic could be released to the public, they would be

more guarded in offering their thoughts due to fears of public confusion, harassment, and unwanted

hostile attention. This would impede the candid discussions necessary to make decisions regarding

public policy surrounding COVID-19. Finally, disclosing signatures, email addresses and phone

numbers of government employees does not aid the public in understanding the activities of the

government, but instead only serves to invade the personal privacy of those identified. If released,

this type of information could be used by the public to send threatening and harassing messages.

Garcia-Malene Suppl. Decl. ¶ 33.

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B. Plaintiff’s FOIA Request 57203

1. Searches

25. On October 12, 2021, NIH received a FOIA request, dated September 30, 2021,

from Plaintiff. Plaintiff’s request sought the following NIH records:

1. All communications regarding the letter by Senators Grassley and Blackburn
dated June 28, 2021.

2. All communications regarding the NIH’s response to Senators Grassley and
Blackburn dated September 8, 2021.

3. All communications regarding the letter by Senators Grassley and Blackburn dated
September 16, 2021.

Garcia-Malene Decl. ¶ 28.

26. On the same day it received this request, October 12, 2021, NIH assigned Plaintiff’s

FOIA request the internal control number 57203. Garcia-Malene Decl. ¶ 30.

27. NIH’s normal procedure for processing Congressional correspondence involves

funneling all such correspondence through the OD’s Executive Secretariat. This process was

followed for the Congressional requests at issue. The Executive Secretariat houses all such

correspondence in their “Synthesize, Analyze, Adjudicate and Vet Information” (“SAAVI”)

database system. Garcia-Malene Suppl. Decl. ¶ 40.

28. The Executive Secretariat searched the SAAVI database and used the keywords

“Grassley,” or “Blackburn,” or both. These keywords were used because they were specifically

mentioned in Plaintiff’s FOIA Request 57203. Garcia-Malene Suppl. Decl. ¶ 42.

29. The Executive Secretariat searched SAAVI because it is the system of record for all

NIH Director and Principal Deputy Directors records, and it houses the email accounts of the

Immediate Office of the Director, where records related to Congressional requests would be found.

Garcia-Malene Suppl. Decl. ¶ 41.

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30. NIH did not search any individual email accounts in the Executive Secretariat given

that Drs. Collins and Tabak’s email accounts are already captured by SAAVI. Garcia-Malene Suppl.

Decl. ¶ 43.

31. In addition to the NIH Director’s Executive Secretariat, NIH searched for

responsive records in OD’s Office of Legislative Policy and Analysis (“OLPA”) because the NIH

Director’s Executive Secretariat works closely with OLPA to ensure that all congressional

correspondence is appropriately handled and vetted. Garcia-Malene Suppl. Decl. ¶ 44.

32. Following the above searches, NIH identified, reviewed, and processed

approximately 794 pages of records, of which 17 pages were released in NIH’s first production on

February 7, 2022 and encompassed draft correspondence with Congress. NIH produced the

remaining 777 pages of records to Plaintiff on May 13, 2022. Garcia-Malene Suppl. Decl. ¶ 45.

33. The Executive Secretariat and OLPA were the only places searched in response to

Request 57203 because these locations are where the requested records are meant to be stored in the

normal course of business. Garcia-Malene Suppl. Decl. ¶ 46.

2. FOIA Exemptions

34. The deliberative process privilege (Exemption 5) was applied here because the

records in question were comprised of various drafts, including, but not limited to, Congressional

correspondence showing NIH’s draft responses beneath congressional questions, NIH’s draft letter

to Congress responding to the legislature’s questions, and draft responses to Congress that had not

been finalized. Garcia-Malene Suppl. Decl. ¶ 48.

35. Upon reviewing materials for the Vaughn index, the attorney-client privilege

exemption was also applied to some emails strings that had already been redacted under Exemption

5 to protect communications between NIH employees and agency’s legal counsel from whom the

employees sought advice. Garcia-Malene Suppl. Decl. ¶ 49.

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36. Exemption 6 was applied here due to the heightened public scrutiny of anything

remotely related to COVID-19. Consequently, all email addresses, direct telephone numbers, and

email addresses have been withheld. Garcia-Malene Suppl. Decl. ¶ 51.

37. NIH conducted a segregability review of the records released. Following its

segregability review, NIH released the information, withholding only information subject to

Exemptions 5 or 6 of the FOIA and information that was so intertwined with exempt information

that NIH could not reasonably segregate that information. Garcia-Malene Suppl. Decl. ¶ 52.

38. As with Request 56712, NIH believes that the material withheld, in whole or part,

under Exemptions 5 or 6 was not appropriate for discretionary disclosures. See Section I.A.2 ¶ 25,

supra; Garcia-Malene Suppl. Decl. ¶ 53.

C. Plaintiff’s FOIA Request 57151

39. On October 7, 2021, Defendant received another FOIA request from Plaintiff, dated

September 30, 2021, which sought a copy of NIH’s “log” of requests for records filed pursuant to

the FOIA that also include “Date of Response” and “Request Status” columns from March 1, 2020

to present. NIH assigned this FOIA request an internal control number of 57151. Garcia-Malene

Suppl. Decl. ¶¶ 34-35.

40. On December 17, 2021, NIH posted the responsive documents online. On

December 23, 2021, NIH produced 130 pages of the same responsive records to Plaintiff. NIH did

not withhold any information on the basis of any FOIA exemption. Garcia-Malene Suppl. Decl. ¶

36.

IV. Procedural History

Plaintiff filed suit in this Court on November 17, 2021. It brought two counts: failure to

comply with the statutory deadlines (Count I) and unlawful withholding of agency records (Count

II). Compl. (Dkt. 1) ¶¶ 28-39. At the time of filing the Complaint, Plaintiff had not received any

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responsive documents or been advised that any records were exempt from disclosure. Id. ¶ 38.

After NIH produced responsive records on February 7, 2022, Plaintiff then sought leave to amend

its complaint to account for the fact that NIH had, in fact, produced responsive records. Mot. for

Leave (Dkt. 14). The Court granted Plaintiff’s motion. (Dkt. 15).

Plaintiff’s Amended Complaint contains three counts. Failure to comply with the statutory

deadlines remains as Count I. Am. Compl. (Dkt. 16) ¶¶ 44-49. Plaintiff added two new counts:

failure to conduct a search reasonably calculated to locate all responsive records (Count II) and

unlawful withholding of agency records under 5 U.S.C. § 552(b)(5) and (b)(6) (Count III). 2 Id. ¶¶ 50-

63. NIH answered the Amended Complaint on March 11, 2022. Answer (Dkt. 17).

LEGAL STANDARD

Summary judgment resolves a FOIA action once a federal agency has produced the

documents sought by a requester. See Hanson v. U.S. Agency for Int’l Dev., 372 F.3d 286, 290

(4th Cir. 2004); Wickwire Gavin, 356 F.3d at 591. A summary judgment motion is granted when

“there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). Therefore, the federal agency is entitled to summary judgment

where there is no genuine issue of material fact that it has complied with the FOIA. See Wickwire,

356 F.3d at 591; see also Havemann v. Colvin, 629 F. App’x 537, 539 (4th Cir. 2015). To serve as a bar

to summary judgment, a disputed fact must be “material,” which means that it “might affect the

outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

2
At summary judgment, however, the Court need only focus on Counts II and III. “The only
question for summary judgment is whether the agency finally conducted a reasonable search, and
whether its withholdings are justified. When exactly a reasonable search was conducted is
irrelevant.” Hornbostel v. U.S. Dep’t of Interior, 305 F. Supp. 2d 21, 28 (D.D.C. 2003); Perry v. Block, 684
F.2d 121, 125 (4th Cir. 1982) (“However fitful or delayed the release of information under the FOIA
may be, once all requested records are surrendered, federal courts have no further statutory function
to perform.”) (emphasis added).

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(1986). And although the non-moving party is entitled to all reasonable, non-speculative inferences

drawn in that party’s favor, such inferences still must be justifiable from the evidence, and the non-

moving party must present “significantly probative”—not “merely colorable”—evidence in its favor.

Id. at 264.

ARGUMENT

I. NIH conducted searches reasonably calculated to lead to responsive records.

NIH’s searches were reasonably calculated to lead to responsive records. “In responding . . .

to a request for records, an agency shall make reasonable efforts to search for the records in

electronic form or format[.]” 5 § U.S.C. 552(a)(3)(C). “[T]he FOIA does not require a perfect

search” for responsive records from the agency, “only a reasonable one.” Rein v. U.S. Patent &

Trademark Office, 553 F.3d 353, 362 (4th Cir. 2009). “[T]he relevant question is not whether every

single potentially responsive document has been unearthed.” Carter, Fullerton & Hayes, LLC v. Fed.

Trade Comm’n, 601 F. Supp. 2d 728, 734 (E.D. Va. 2009). Rather, “the adequacy of a FOIA search is

generally determined not by the fruits of the search, but by the appropriateness of the methods used

to carry out the search.” Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). A

search is reasonably thorough so long as the places that are “likely to contain responsive materials”

are searched. Carter, Fullerton, & Hayes, 601 F. Supp. 2d at 734. This means that a search remains

reasonably thorough, even if responsive materials “may have [been] missed.” Iturralde, 315 F.3d at

315. The agency “has the burden of establishing the adequacy of its search and that any identifiable

document has . . . been produced[.]” Heily v U.S. Dep’t of Commerce, 69 F. App’x 171, 173 (4th Cir.

2003) (citing Carney v. Dep’t of Just., 19 F.3d 807, 812 (2d Cir. 1994)). “This burden may be met

through affidavits explaining the manner in which the search was conducted.” Id. “The court is

entitled to accept the credibility of such affidavits, so long as it has no reason to question the good

faith of the agency.” Id. (citations and internal quotation marks omitted).

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Here, through the declaration of its FOIA officer, NIH has adequately explained the steps it

took to locate records responsive to Plaintiff’s FOIA requests.

A. NIH conducted an adequate search for responsive records for Request 56712.

Generally speaking, Plaintiff’s Request 56712 sought communications related to the

withdrawal of data from SRA and Jesse Bloom’s article on the same. Garcia-Malene Decl. ¶ 10.

NIH’s searches were reasonably calculated to locate records responsive to this request.

Items 1 and 2 of Plaintiff’s FOIA request sought “all communications” regarding the request

to post, and later withdraw, COVID-19 genetic sequences to SRA. Id. The requests were time-

limited—March 1, 2020 to March 31, 2020, for the request to post the sequence, and June 1, 2020 to

June 31, 2020 to remove the sequence. Id. At NIH, SRA is hosted by NCBI and NLM. Garcia-

Malene Suppl. Decl. ¶ 15. With this in mind, NIH searched NCBI’s communication-tracking

database to find correspondence from the researcher requesting that their data be withdrawn. Id. ¶

16. That database was selected because it houses communications about SRA and submitted

sequences. Id. NIH used the project identification associated with the withdrawn sequence

(PRJNA612766) as a keyword to pull responsive documents from the database within the date range

Plaintiff requested. Id.

Item 3 sought communications related to Jesse Bloom’s preprint on the withdrawn data.

Garcia-Malene Decl. ¶ 10. This request was two-fold: it sought both communications between Jesse

Bloom and NIH from January 1, 2021 to the date of the request and it also sought internal NIH

communications about the preprint from June 21, 2021 to June 25, 2021. Id. NIH conducted two

different searches. First, it searched the email of Stephen Sherry, Acting Director of NCBI and

NLM during the relevant time period. Garcia-Malene Suppl. Decl. ¶ 17. As acting director, Dr.

Sherry would have been involved in communications about Dr. Bloom’s preprint. Id. Dr. Sherry

used the keywords “preprint,” “jesse bloom” or “biorxiv” to search his email for the dates

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requested, as Dr. Bloom’s preprint was published on bioRxiv, “the server for biology preprints.” Id.

¶ 18.

NIH also searched the email accounts of some of NIH’s senior leadership: Dr. Collins, Dr.

Tabak, Dr. Lauer, and Burklow. 3 Id. ¶ 19. The first additional search used the keywords: “Jesse

Bloom” and “Recovery of deleted deep sequencing data sheds more light on the early Wuhan SARS-

CoV2 epidemic,” the title of Dr. Bloom’s article. The second additional search used the keyword:

“jbloom@fredhutch.org,” Dr. Bloom’s email address. Id.

The final item from Request 56712, Item 4, sought communications in the June 21, 2021 to

June 25, 2021 time period, “to, from, and within” the NIH press office about a statement released

on June 23, 2021 regarding the withdrawn data. Garcia-Malene Decl. ¶ 10. OCPL was the only

location searched because Plaintiff specifically designated the NIH “press office” in the request. Id.

¶10; Garcia-Malene Suppl. Decl. ¶ 20. OCPL used the keywords “NIH statement sequence read

archive” to search the emails of OCPL leadership: Amanda Fine, Acting Deputy Director of OCPL;

Renate Myles, Acting Director of OCPL; and Burklow, Acting Chief of Staff in the OD and former

Director of OCPL. 4 Garcia-Malene Suppl. Decl. ¶ 21.

NIH has described where it searched for records responsive to Request 56712 and why

those locations were logical places to search. Accordingly, NIH conducted an adequate search.

B. NIH conducted an adequate search for responsive records to Request 57203.

3
During this litigation, Plaintiff requested that NIH search these four individuals’ email accounts.
Garcia-Malene Suppl. Decl. ¶ 19.
4
John Burklow became Acting Chief of Staff in the OD in April 2021. Prior to assuming this
position, he served for many years as NIH’s Associate Director for Communications and Public
Liaison and Director of the Office of Communications and Public Liaison. John T. Burklow, NIH,
available at https://www.nih.gov/institutes-nih/nih-office-director/john-t-
burklow#:~:text=John%20Burklow%20became%20Acting%20Chief,of%20Health%20and%20Hu
man%20Services. (last accessed June 9, 2022).

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In general, Plaintiff’s Request 57203 asked for communications “regarding” letters sent to

NIH from Senators Grassley and Blackburn, dated June 28, 2021, September 8, 2021, and

September 16, 2021. Garcia-Malene Decl. ¶ 28. NIH funnels all Congressional correspondence

through the OD’s Executive Secretariat. Garcia-Malene Suppl. Decl. ¶ 40. The Executive

Secretariat houses all such correspondence in their “Synthesize, Analyze, Adjudicate and Vet

Information” (“SAAVI”) database system. Id. SAAVI is the system of record for all NIH Director

and Principal Deputy Director records and houses the email accounts of the immediate Office of

the Director. Id.

NIH searched the SAAVI database for records responsive to Request 57203 using the

keywords “Grassley” and “Blackburn.” Id. ¶ 41. NIH did not search any individual email accounts

in the Executive Secretariat given that Drs. Collins and Tabak’s email accounts were already

captured by SAAVI. Id. In addition to SAAVI, NIH searched for responsive records in OD’s

Office of Legislative Policy and Analysis (“OLPA”) because the Executive Secretariat works closely

with OLPA to ensure that all congressional correspondence is appropriately handled and vetted. Id.

¶ 44.

NIH searched for Congressional correspondence in the two places those records were most

likely to exist, and therefore its search was adequate.

II. NIH properly redacted information pursuant to express statutory exemptions.

The FOIA requires an agency “to disclose agency records unless they may be withheld

pursuant to one of nine enumerated exemptions listed in § 552(b).” Heily, 69 F. App’x at 173. The

agency bears the burden of establishing the applicability of an exemption. Id. “In order to carry this

burden, an agency must submit sufficiently detailed affidavits or declarations, a Vaughn index of the

withheld documents, or both[.]” Nat’l Sec. Council v. Cent. Intel. Agency, 206 F. Supp. 3d 241, 249

(D.D.C. 2016), aff’d, 969 F.3d 406 (D.C. Cir. 2020). These materials, in whichever form,

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“demonstrate that the government has analyzed carefully any material withheld,” allow the court “to

fulfill its duty of ruling on the applicability of the exemption,” and permits “the adversary system to

operate by giving the requester as much information as possible, on the basis of which the

requester’s case may be presented to the trial court.” Id.

Here, as explained by the NIH’s FOIA Director and demonstrated in two Vaughn indices,

NIH’s productions contained statutorily-permissible redactions under 5 U.S.C. § 552(b)(5)

(“Exemption 5”) and 5 U.S.C. § 552(b)(6) (“Exemption 6”). 5

A. NIH properly redacted information pursuant to Exemption 5.

Exemption 5 shields “inter-agency or intra-agency memorandums or letters which would not

be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. §

552(b)(5). “As the text indicates—albeit in a less-than-straightforward way—this exemption

5
To the extent that Plaintiff challenges the application of Exemption 4 to ZoomGov meeting
identification number and passcode (which was added when NIH was preparing the Vaughn indices
in this litigation), that challenge fails. As an initial matter, at the time the records were released to
Plaintiff, NIH withheld this information on the basis of the deliberative process privilege. See Rocky
Mountain Wild, Inc. v. U.S. Forest Serv., 2021 WL 825985, at *22 (D. Colo. Mar. 4, 2021) (protecting
information under deliberative process privilege); Garcia-Malene Decl., Attach. E; Garcia-Malene
Suppl. Decl., Attach. I. But on the merits, NIH properly asserted Exemption 4 over this
information as well. Exemption 4 shields “commercial or financial information obtained from a
person” and that is “privileged or confidential.” 5 U.S.C. § 552(b)(4). Courts have protected
government conference numbers under other FOIA exemptions using a similar rationale to what
NIH asserts here under Exemption 4—“the agency teleconference numbers and passcodes are
shared internally for the purpose of conducting official business,” Rocky Mountain Wild, 2021 WL
825985, at *9, and “disclosure would allow taxpayers to eavesdrop” on sensitive, possibly privileged,
conversations, see, e.g., Highland Capital Mgmt., LP v. Internal Revenue Serv., 408 F. Supp. 3d 789, 817-18
(N.D. Tex. 2019) (protecting information under Exemption 7(e)). Here, as explained in the Vaughn
index, the ZoomGov information is specific to the individual (i.e., every NIH employee has his or
her own ZoomGov meeting identification and passcode) and the information is not otherwise
publicly available. Vaughn I at 15 (211); 16 (270). ZoomGov is used by NIH employees to conduct
official NIH business, which may include sensitive or privileged conversations. Id. The release of
this login information to the public would permit third parties to access future calls and listen to
internal, pre-decisional deliberations, confidential commercial information, and personal privacy
information regularly discussed during these internal calls. Id. Accordingly, NIH properly withheld
this information from disclosure pursuant to Exemption 4, in addition to its previously-claimed
exemption under the deliberative process privilege.

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incorporates the privileges available to Government agencies in civil litigation.” U.S. Fish & Wildlife

Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 785 (2021). This includes the attorney-client privilege and the

deliberative process privilege. Id.; Solers, Inc. v. Internal Revenue Serv., 827 F.3d 323, 329 (4th Cir.

2016). NIH properly applied those privileges here.

1. NIH properly withheld information based on the deliberative process
privilege.

The deliberative process privilege “rests on the obvious realization that officials will not

communicate candidly among themselves if each remark is a potential item of discovery and front-

page news.” Solers, 827 F.3d at 329. To justify application of the privilege, the context in which the

materials were used must be “both pre-decisional and deliberative.” Id. “Pre-decisional documents

are those prepared in order to assist an agency decisionmaker in arriving at his decision, and

deliberative documents are those that reflect the give-and-take of the consultative process by

revealing the manner in which the agency evaluates possible alternative policies or outcomes.” Id.

(cleaned up). “The privilege thus protects recommendations, draft documents, proposals,

suggestions, and other subjective documents which reflect the personal opinions of the writer rather

than the policy of the agency.” Id. (emphasis omitted).

As a preliminary matter, NIH has articulated the harm from disclosure of any of the

documents protected by the deliberative process privilege. See Judicial Watch v. Dep’t of State, 557 F.

Supp. 3d 52, 60-61 (D.D.C. 2021) (discussing reasonably foreseeable harm requirement under

deliberative process privilege). The withheld materials here are NIH employees’ deliberations on a

sensitive and nuanced matter—the COVID-19 pandemic and its origins. Release of these materials

would chill the employees’ frank internal discussions in future public health crises, as well as the

ongoing COVID-19 pandemic. Garcia-Malene Suppl. Decl. ¶¶ 33, 53; see Leopold v. U.S. Dep’t of Just.,

2021 WL 3128866, at *4 (D.D.C. July 23, 2021) (“release of these discussions, especially given the

high-profile and sensitive nature of this case, would dampen the free exchange of ideas within the
18

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agency.”). Additionally, non-final statements—which may not have been subject to as extensive

fact-checking as a final statement—could be used out of context and serve to amplify the already

prevalent misinformation regarding the origins of the pandemic. Garcia-Malene Suppl. Decl. ¶¶ 33,

53. Disclosing these pre-decisional, back-and-forth drafts “would ultimately damage the intra-

agency decision-making process and the public perception of the department.” Leopold, 2021 WL

3128866, at *4.

The materials NIH withheld pursuant to the deliberative process privilege can be divided

into the following categories: advice on responding to public inquiries about the data withdrawal

from SRA; draft Congressional correspondence and strategy on the same; and draft documents

about future agency action. As described below, each category of documents meets the

requirements for the deliberative process privilege, and NIH appropriately withheld the materials on

that basis.

a. NIH properly withheld information related to government employees
seeking advice on how to respond to public inquiries about Dr. Bloom’s
paper.

NIH properly withheld information related to discussions among NIH employees on the

best approach to responding to inquiries—from the media, Dr. Bloom, and the public at large—

about the data withdrawal from SRA.

Internal discussions about how to respond to media inquiries—which are, in effect,

“deliberations about policy”—are protected by the deliberative process privilege. Comm. on Oversight

and Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 112 (D.D.C. 2016). As one district court has stated,

this conclusion “is inescapable: if agency deliberations about public statements were FOIA-able,

then agencies would be hamstrung in their dealings with the press, defeating the very transparency

FOIA aims to foster.” Id.; see also Judicial Watch v. Dep’t of Homeland Sec., 736 F. Supp. 3d 202, 208

(D.D.C. 2010) (holding documents about “how to respond to on-going inquiries from the press and

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Congress” fell under the deliberative process privilege); Citizens for Resp. & Ethics in Wash. v. U.S.

Dep’t of Labor, 478 F. Supp. 2d 77, 83 (D.D.C. 2007) (finding that deliberative process privilege

covered email messages discussing the agency’s response to news article); Judicial Watch, Inc. v. Reno,

2001 WL 1902811, *3 (D.D.C. Mar. 30, 2001) (holding that deliberations about “how to handle

press inquiries and other public relations issues” are covered by the deliberative process privilege).

Here, NIH has withheld parts of emails that discuss how to handle the response to media

inquiries about the researcher’s request to withdraw data from the SRA. NIH was asked to

comment in advance of articles published on June 23, 2021 in national news outlets. See, e.g., Vaughn

I at 14-15 (189-90) 6; Vaughn II at 3-4 (440-443); 4-6 (454-461); 6-7 (469-74); see also DEX 5 (“We

have additional media questions that need responses from NLM; I’ve put with I have but please

correct/add as needed.”). These emails, dated June 21, 22, and 23, 2021, discussed an appropriate

response to the Wall Street Journal and other outlets 7 and were written before the agency issued any

final public statement about Dr. Bloom’s paper. Furthermore, they are deliberative in that they

represent the “give and take” between various offices at NIH on how to respond questions to about

SRA and the withdrawn data.

Additionally, NIH withheld portions of emails that contain talking points, “documents

prepared by government employees for the consideration of government decision-makers.” Am.

6
Vaughn I (DEX 3) corresponds to NIH’s February 7, 2022 production, whereas Vaughn II (DEX 4)
corresponds to NIH’s May 13, 2022 production. The citation Vaughn II at 24 (35) directs to Vaughn
II, Page 24 (found in bottom right corner), document page 35 (first column) (“Attachment of draft
responses to Congressional letter from Senators Grassley and Blackburn dated September 16,
2021”).
7
Amy Dockser Marcus, Betsy, McKay, Drew Hinshaw, Chinese Covid-19 Gene Data That Could Have
Aided Pandemic Research Removed From NIH Database, WALL STREET J. (June 23, 2021),
https://plus.lexis.com/api/permalink/a25d7c9f-670d-4f2f-b199-ba78e38f8490/?context=1530671;
Carl Zimmer, Scientist Finds Early Virus Sequences That Had Been Mysteriously Deleted, N.Y.
TIMES (June 23, 2021), https://www.nytimes.com/2021/06/23/science/coronavirus-
sequences.html.

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Ctr. for L. & Just. v. U.S. Dep’t of Just., 325 F. Supp. 3d 162, 173 (D.D.C. 2018). Talking points are

also protected by the deliberative process privilege, including the “final” version. Id. As one court

noted, “the ‘final’ version of talking points prepared by more junior staffers for a more senior

official is rarely the final decision about what the senior official will say.” Id. “Rather, a senior

official . . . may elect to use all, some, or none of the talking points prepared for her.” Id. Here, the

“QA” (question and answer) document that NIH employees prepared for senior leadership is

protected by the deliberative process privilege. It represents NIH employees’ collective thinking

about how to respond to inquiries that NIH might receive after Dr. Bloom’s article was published.

See, e.g., Vaughn I at 3-4 (20-22) (describing withheld material as “internal pre-decisional discussion

among NIH employees composing a draft reactive statement and a QA in view of the anticipated

posting of Dr. Bloom’s paper”); 16 (215-16). The QA document was created before the June 23,

2021 news articles. Vaughn I at 3-4 (20-22); 16 (215-16). Thus, the QA is pre-decisional—prepared

before NIH made any public statement, either to the media or Dr. Bloom—and reflects the “give

and take” of various NIH employees discussing the most appropriate response.

NIH also withheld materials under the deliberative process privilege where NIH employees

were discussing how to respond to inquiries from Dr. Bloom. See, e.g., Vaughn I at 7 (87); Vaughn II

at 14 (625). These materials, too, were prepared before the agency responded to Dr. Bloom and

reflect NIH employees’ discussions that ultimately informed the agency’s response to Dr. Bloom.

Finally, NIH withheld parts of documents where NIH employees discussed NIH policy on

SRA. These internal conversations occurred prior to NIH making any public statement about the

withdrawn data and ultimately informed those statements. These emails were a back-and-forth

discussion about NIH’s current SRA policies and the impact Dr. Bloom’s article and attendant press

coverage might have on those policies going forward. Vaughn I at 17 (221-23). Thus, for the

reasons discussed above, these documents were both pre-decisional and deliberative.

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b. NIH properly withheld strategy discussions about responding to
Congressional inquiries, draft correspondence, and discussions about
future agency actions.

NIH properly withheld discussions of strategy about replying to Congressional requests,

drafts of that correspondence, and future agency actions pursuant to the deliberative process

privilege.

Strategy about how to respond to Congressional inquiries and drafts of responses are “by

their nature, ‘pre-decisional’ and prototypically ‘deliberative.’” Bell v. Dep’t of Def., 2018 WL

4637005, at *14 (D.D.C. Sept. 27, 2018); see also Citizens for Resp. & Ethics in Wash. v. Gen. Servs.

Admin., 2021 WL 1177797, at *9 (D.D.C. Mar. 29, 2021) (citing cases and finding GSA appropriately

withheld records that included deliberations regarding how GSA would move forward with

responding to questions for the record from a Senate committee).

Here, NIH employees from across the agency—NLM, which hosts the SRA, OPLA, and

members of the Director’s staff— discussed via email how to respond to the letters sent by Senators

Grassley and Blackburn, the subject of Request 57203. See, e.g., Vaughn II at 21 (6-8) (“internal, pre-

decisional discussion among NIH employees discussing draft responses to the June 28, 2021 letter

by Senators Grassley, Blackburn and Marshall); see also DEX 6 (email from Teresa Zayas Cabán,

Ph.D., Assistant Director for Policy Development at NLM, circulating draft letter to Senators

Grassley and Blackburn for review). These discussions occurred before NIH formally responded to

the letters and reflect the exchange of ideas between NIH staff members about the SRA and its

policies.

Additionally, NIH properly withheld materials concerning discussions about future agency

action, including a communication strategy about an SRA review plan, discussions about which

documents were responsive to certain FOIA requests, and the timing of the agency’s response to

Congressional requests. See, e.g., Vaughn I at 12-13 (170-71) (discussion about response to FOIA

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requests); Vaughn II at 25 (39) (status of various Congressional inquiries); 62 (522-25) (draft

communications strategy for SRA review).

“In the course of its day-to-day activities, an agency often needs to rely on the opinions and

recommendations of its own employees[.]” Bell, 2018 WL 4637005, at 14. “[T]hat is an integral part

of its deliberative process; to conduct this process in public view would inhibit frank discussion of

policy matters and likely impair the quality of decisions.” Id. Here, NIH employees discussed future

agency actions that had yet to be finalized. These discussions took place before the agency took any

final action and reflected the candid thoughts of NIH employees. Therefore, it was appropriate for

NIH to withhold these materials pursuant to the deliberative process privilege.

2. NIH properly withheld information pursuant to the attorney-client privilege.

The attorney-client privilege protects “confidential communications between an attorney and

his client relating to a legal matter for which the client has sought professional advice.” Judicial Watch,

Inc. v. Dep’t of Treasury, 802 F. Supp. 2d 185, 200 (D.D.C. 2011). Like the deliberative process

privilege, the attorney-client privilege’s purpose is to promote free and open communication,

ensuring that clients may be honest with their attorneys and that their confidences are protected.

Competitive Enter. Inst. v. U.S. Env’t Prot. Agency, 232 F. Supp. 3d 172, 184 (D.D.C. 2017). “In the

context of FOIA, the agency is the ‘client’ and the agency’s lawyers are the ‘attorneys’ for the

purposes of attorney-client privilege.” Id.

Here, NIH properly withheld information where NIH employees were seeking legal advice

from NIH attorneys. For example, in the course of preparing responses to Congressional letters, an

NIH employee wrote to NIH legal counsel seeking legal advice on how to respond to a

Congressional inquiry. Vaughn II at 82 (710). NIH’s counsel responded with legal analysis. Vaughn

II at 82 (709). Similarly, in another example, NIH employees asked NIH’s legal counsel to review

proposed responses to Congress. Vaughn II at 43-44 (207, 216-33); see also DEX 7 (email to A.

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Jacobs, senior attorney, seeking legal review); DEX 8. These emails, between the client and the

attorney, for the purpose of providing legal advice, fall squarely within the attorney-client privilege.

As such, NIH properly withheld them.

B. NIH properly redacted individuals’ names and contact information pursuant to
Exemption 6.

NIH properly applied Exemption 6 to protect from disclosure the names and contact

information of individual NIH employees, the name and email address of the researcher who

requested removal of the sequence from SRA, and the personal email addresses of third parties.

Exemption 6 safeguards from disclosure “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). Determining whether Exemption 6 applies is a two-step process. “First, the file must

be identified as the type considered by statute,” i.e., a file similar to a personnel or medical file.

Judicial Watch, Inc. v. U.S. Dep’t of State, 875 F. Supp. 2d 37, 46 (D.D.C. 2012). If the information is

contained in a “similar file,” “courts employ a balancing test that weighs the individual’s privacy

interests against the public’s interest in disclosure.” Solers, 827 F.3d at 332.

1. The emails are “similar files” under the statute.

Turning first to whether the records, which are emails, fall within the type of file protected

by Exemption 6, the phrase “similar files” “sweeps broadly and has been interpreted by the Supreme

Court to mean detailed Government records on an individual which can be identified as applying to

that individual.” Solers, 827 F.3d at 332. “[T]the protection of an individual’s right of privacy, which

Congress sought to achieve by preventing the disclosure of [information] which might harm the

individual, surely was not intended to turn upon the label of the file which contains the damaging

information.” U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 601 (1982). Therefore, “a record

need not be like a personnel file in the sense that it is employment-related or a medical file in the

sense that it contains a record of a person’s medical history or medical treatment and care.” Cook v.
24

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Nat’l Archives & Records Admin., 758 F.3d 168, 174 (2d Cir. 2014). “Indeed, the record need not even

be a ‘file.’” Id. Nor does the information in the file need to be “intimate”: “the threshold for

application of Exemption 6 is crossed if the information merely applies to a particular individual.”

N.Y. Times Co. v. Nat’l Aeronautics & Space Admin., 920 F.2d 1002, 1006 (D.C. Cir. 1990) (en banc).

“Courts have considered emails and correspondence files ‘similar files’ in recent years.”

Judicial Watch, Inc. v. U.S. Dep’t of State, 875 F. Supp. 2d 37, 46-47 (D.D.C. 2012) (citing cases). Here,

NIH redacted names and email addresses, and in some cases phone numbers, from NIH emails.

“The emails here, which contain names, titles, offices and phone numbers, qualify as similar files

because they contain personal information about the named government personnel.” Id. The first

step in the Exemption 6 analysis is therefore met.

2. Releasing the withheld names and email addresses would be “a clearly
unwarranted invasion of privacy.”

Having met the threshold inquiry, the question becomes whether disclosure would constitute

“a clearly unwarranted invasion of privacy.” Solers, 827 F.3d at 332. “To determine whether an

invasion of privacy would be ‘clearly unwarranted,’ courts employ a balancing test that weighs the

individual’s privacy interests against the public interest in disclosure.” Id. The public interest is

served to “the extent to which disclosure of the information sought would shed light on an agency’s

performance of its statutory duties or otherwise let citizens know what their government is up to.”

Id.; see also Milton v. U.S. Dep’t of Just., 783 F. Supp. 2d 55, 58 (D.D.C. 2011). “Conversely, there is no

public interest in disclosure of information about private citizens that reveals little or nothing about

an agency’s own conduct.” Milton, 783 F. Supp. 2d at 58. NIH withheld information under

Exemption 6 about three categories of individuals: telephone and email addresses for NIH

employees; the name and contact information of the researcher who requested that the data be

withdrawn from the SRA; and the personal email addresses of third parties like Dr. Bloom and

journalists.
25

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a. The email addresses and phone numbers of NIH employees do not shed
any light on how NIH functions.

Here, NIH properly withheld the names and email addresses of NIH employees because on

balance, there is little public interest in learning their identities and substantial privacy interests in

keeping their identities confidential. In Solers, the Fourth Circuit considered whether Exemption 6

shielded the names of two Internal Revenue Service (“IRS”) employees who were consulted in

connection with the plaintiff’s audit. 827 F.3d at 332. “On the one side of the scale, IRS employees,

as well as other government employees, have a substantial interest in the nondisclosure of their

identities and their connection with particular investigations because of the potential for future

harassment, annoyance, or embarrassment.” Id. at 333. “But, on the other side of the scale in this

case, the record contains no indication that disclosing the names and contact information of these

IRS employees would serve the public interest.” Id. (emphasis in original). The Fourth Circuit held

the IRS properly withheld the names and contact information of the IRS employees, citing to one of

its unpublished opinions, Judicial Watch, Inc. v. United States. In that case, the Fourth Circuit found

that “the public interest in the names of government employees alone would appear to be negligible

‘absent a compelling allegation of agency corruption or illegality[.]’” 84 F. App’x 335, 339 (4th Cir.

2004) (quoting Neely v. FBI, 208 F.3d 461, 464 (4th Cir. 2000) (considering propriety of withholding

names and identifying information of FBI agents, other government employees, third-party suspects,

and third parties under Exemption 7(C))).

The Fourth Circuit has not explicitly stated whether a plaintiff must make a “compelling

allegation of agency corruption or illegality” to assert a public interest favoring disclosure under

Exemption 6. But this Court need not decide whether such a “compelling allegation” is required.

Plaintiff cannot articulate any public interest—as that phrase is defined under Exemption 6 of

FOIA—in learning the names and email address of NIH employees who responded to the request

to withdraw the sequence from the SRA. Plaintiff concedes as much in both its FOIA request and
26

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its Amended Complaint. In Request 56712, Plaintiff noted that “[s]equences of SARS-CoV-2 virus

are critical to understanding how this pandemic . . . started, in order to prevent future pandemics.

Furthermore, the State Department has noted that China has not been transparent in its handling of

the SARS-CoV-2 origin question and has removed virus sequences from its own online databases

that could help uncover how the pandemic started.” Garcia-Malene Decl., Attach. A, at 1. In its

Amended Complaint, Plaintiff posits that “the public thus has significant interest in understanding

the reason why these early sequences were removed from the SRA,” noting the death toll from

COVID-19. Am. Compl. ¶¶ 10-11 (emphasis added). Notably, Plaintiff does not allege that learning

the names and email addresses of the NIH employees who processed the data withdrawal will “shed

light” on why these sequences were removed. Nor can it. Learning the names and email addresses

of the individual NIH employees does not help the public understand why the sequences were

removed or how the pandemic started. Therefore, there is little public interest in releasing the

names and email addresses of these NIH employees. See U.S. Dep’t of Just. v. Reporters’ Comm. for

Freedom of Press, 489 U.S. 749, 773-74 (1989) (“The deletions were unquestionably appropriate

because the names of the particular cadets were irrelevant to the inquiry into the way the Air Force

Academy administered its Honor Code”); Smith v. U.S. Dep’t of Treasury, 2020 WL 376641, at *5

(D.D.C. Jan. 23, 2020).

On the other hand, there is a substantial privacy interest for these NIH employees in

“avoiding embarrassment, retaliation or harassment and intense scrutiny by the media that would

likely follow disclosure.” Judicial Watch, 875 F. Supp. 2d at 46. Given the interest in the COVID-19

pandemic, if members of the public believe Plaintiff’s narrative that there was something untoward

about NIH’s decision to remove the data from the SRA, disclosure of this information could lead to

harassing and threatening emails to NIH employees. Garcia-Malene Suppl. Decl. ¶¶ 33, 53; see also

Paul Duggan, Man Pleads Guilty to Federal Charge of Threatening Anthony Fauci, WASHINGTON POST

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(May 23, 2022), https://www.washingtonpost.com/dc-md-va/2022/05/23/fauci-death-threats-

guilty-plea/ (describing threats sent to Dr. Fauci, the nation’s top COVID-19 advisor, his family,

and Dr. Collins, then-Director of NIH). Disclosure of the NIH employees’ names and email

addresses could also lead to undesired media contact, where, as here, the topic (origins of COVID-

19) “continues to receive substantial press coverage.” Judicial Watch, 875 F. Supp. 2d at 46 (“While

lobbyists . . . may be prepared to weather intense media attention, the same may not necessarily be

said for the White House Security Staff.”). Indeed, Plaintiff’s FOIA requests, Amended Complaint,

and appeal letters are rife with citations to various news articles surrounding not only the COVID-

19 pandemic, but the origins of the pandemic and the removal of the sequence from the SRA, the

specific items Plaintiff hopes to investigate through its FOIA requests. The lack of any public

interest, coupled with the potential for harassment and unwanted media attention, means NIH was

correct to withhold this information.

b. The researcher who requested to withdraw their data is entitled to
protection under Exemption 6.

The same result holds for NIH’s withholding of the name and email address of the

researcher who requested that their prior submission to the SRA be withdrawn. That researcher is

affiliated with Wuhan University in Wuhan, China. Garcia-Malene Suppl. Decl. ¶ 16. Notably,

courts have afforded foreign nationals the same privacy rights under FOIA as they afford U.S.

citizens. See U.S. Dep’t of State v. Ray, 502 U.S. 164, 175-79 (1991) (applying traditional analysis of

privacy interests under FOIA to Haitian nationals); Graff v. FBI, 822 F. Supp. 2d 23, 34 (D.D.C.

2011) (holding, in a case involving redactions under Exemption 7(C), “foreign nationals are entitled

to the privacy protections embodied in FOIA”); Judicial Watch, Inc. v. Dep’t of Homeland Sec., 514 F.

Supp. 2d 7, 10 n.4 (D.D.C. 2007) (stating that “courts in our Circuit have held that foreign nationals

are entitled to the same privacy rights under FOIA as United States citizens”); Schiller v. INS, 205 F.

Supp. 2d 648, 662 (W.D. Tex. 2002) (finding, in a case involving redactions under 7(C), that “[a]liens
28

Case 1:21-cv-01275-LMB-JFA Document 37 Filed 06/10/22 Page 30 of 31 PageID# 386

[and] their families . . . have a strong privacy interest in nondisclosure of their names, addresses, and

other information which could lead to revelation of their identities”); Judicial Watch, Inc. v. Reno, 2001

WL 1902811, at *8 (D.D.C. Mar. 30, 2001) (protecting asylum application filed on behalf of Cuban

émigré). “Even if a third party’s status as a foreign national gives rise to a privacy interest that is

somewhat weaker than that of a U.S. citizen, given the structure of the statute, even a weak privacy

interest will always outweigh the lack of public interest.” Graff, 822 F. Supp. 2d at 34.

In its appeal letter to NIH, Plaintiff argued that the researcher from Wuhan University, a

public institution, was a “government official[] operating in their official capacity” and thus their

identity should be made public. Garcia-Malene Decl., Attach. G, at 19. In Pinson v U.S. Department of

Justice, the District Court for the District of Columbia rejected a similar argument. The plaintiff in

that case argued that there was a great public interest in learning about the participation of foreign

government representatives in an FBI investigation, specifically the identities of those foreign

nationals who had worked with the FBI. 177 F. Supp. 3d 56, 87-88 (D.D.C. 2016). The FBI had

provided documents that identified participation of foreign governments in its investigations, but

had withheld the names of the individual foreign nationals who worked on the investigations. Id. at

87. The district court found that these redacted documents “shed light on how the FBI gathers and

coordinates information . . . effectuating the purpose of FOIA.” Id. The FBI had appropriately

withheld the names of individual foreign nationals because “the public interest is in the disclosure of

the foreign government’s participation, not of the identifying information of each individual foreign

official.” Id. at 87-88.

The district court’s logic in Pinson applies here. The public interest is in the disclosure that a

researcher affiliated with Wuhan University requested that previously-submitted COVID-19

sequences be removed from the SRA. Learning the identity of the researcher does nothing to “shed

light on [NIH’s] performance of its statutory duties” and disclosure of information about the

Case 1:21-cv-01275-LMB-JFA Document 37 Filed 06/10/22 Page 31 of 31 PageID# 387

researchers “shows little or nothing about an agency’s conduct.” Smith, 2020 WL 376641, at *4; see

also Osen LLC v. U.S. Central Command, 2019 WL 4805805, at *11 (S.D.N.Y. Sept. 30, 2019) (“The

public’s interest in having the information for its own sake falls outside the Act’s scope.”).

c. There is no public benefit to releasing the private email addresses of Dr.
Bloom and journalists.

Finally, the logic above—the risk of embarrassment or invasion of privacy balanced against

whether that information would shed light on how the government operates—applies with even

more force to third parties like journalists or researchers whose private email addresses NIH

withheld. See, e.g., Vaughn I at 1 (1-2); Vaughn II at 14 (630, 632). Knowing the personal email of

Dr. Bloom or a journalist does not provide any information about the SRA; it simply publishes

information that leaves those individuals vulnerable to unwanted attention. Accordingly, NIH

appropriately withheld this information under Exemption 6.

CONCLUSION

For the foregoing reasons, NIH respectfully requests that this Court grant NIH’s motion for

summary judgment.

Dated: June 10, 2022 Respectfully submitted,

JESSICA D. ABER
UNITED STATES ATTORNEY

By: /s/
MEGHAN LOFTUS
Assistant United States Attorney
Office of the United States Attorney
Justin W. Williams U.S. Attorney’s Building
2100 Jamieson Ave.
Alexandria, VA 22314
Tel: (703) 299-3757
Fax: (703) 299-3983
Email: meghan.loftus@usdoj.gov

Counsel for Defendant

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