Master Archive Motion For Summary Judgment
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Plaintiff's opposition to defendant's motion for summary judgment in Empower Oversight Whistleblowers & Research v. National Institutes of Health, No. 1:21-CV-1275-LMB/JFA, in the U.S. District Court for the Eastern District of Virginia, Alexandria Division, filed July 15, 2022 as Document 42-2. Empower Oversight asks the court to deny NIH's motion in its Freedom of Information Act suit for three reasons: NIH did not meet FOIA's twenty-day response deadline, its searches were not shown to be reasonably calculated to uncover responsive records, and it did not carry its burden to withhold information under Exemption 5 and Exemption 6. The filing responds paragraph by paragraph to NIH's statement of undisputed facts on Request 56712, Request 57203 and Request 57151. It argues that NIH redacted employee contact information under Exemption 6 where no harassment threat existed.
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Case 1:21-cv-01275-LMB-JFA Document 42-2 Filed 07/15/22 Page 1 of 28 PageID# 785
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
EMPOWER OVERSIGHT )
WHISTLEBLOWERS & RESEARCH, )
)
Plaintiff, )
) No. 1:21-CV-1275-LMB/JFA
v. )
)
NATIONAL INSTITUTES OF HEALTH )
)
Defendant. )
PLAINTIFF’S OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Case 1:21-cv-01275-LMB-JFA Document 42-2 Filed 07/15/22 Page 2 of 28 PageID# 786
INTRODUCTION
Empower Oversight brought this suit to compel the National Institutes of
Health (NIH) to comply with the Freedom of Information Act, which establishes a
statutory right of public access to federal agency records. No court should construe
this right to information “as a convenient formalism.” Nat’l Archives & Records
Admin. v. Favish, 541 U.S. 157, 172 (2004). “It defines a structural necessity in a
real democracy.” Id.
NIH suggests that it has fulfilled its statutory obligations under FOIA, and the
agency urges this Court to grant judgment in its favor. Yet the agency’s arguments
cannot withstand scrutiny. This Court should deny NIH’s motion for summary
judgment for three reasons.
First, NIH undisputedly failed to comply with FOIA’s statutory deadlines.
Empower Oversight submitted requests in July and October 2021. To comply with
the act, NIH had to respond to those requests within twenty days, or it had to explain
why unusual circumstances warranted more time. NIH did neither one of those
things. Indeed, the agency concedes that it did not respond to either request until
February 7, 2022—months too late.
Second, NIH incorrectly claims that it conducted searches reasonably
calculated to lead to responsive records. As proof, NIH touts the fact that it “has
released, in whole or part, close to 2,000 pages of records responsive” to Empower
Oversight’s FOIA requests. Memo at 1 (Dkt. No. 37). This Court should reject that
argument because the adequacy of an agency’s search does not depend on “the fruits
of the search.” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir.
2003). On this record, NIH has not demonstrated that it has conducted a search
reasonably calculated to uncover all relevant documents because an adequate search
requires both an understanding of the nature and the scope of Empower Oversight’s
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requests as well as knowledge of where responsive information may be stored within
the agency.
Third, NIH failed to carry its burden for this Court to sustain withholding
information from Empower Oversight under Exemption 5 and Exemption 6.
STATUTORY BACKGROUND
FOIA strongly favors openness. DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989).
“The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning
of a democratic society, needed to check against corruption and to hold the governors
accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242
(1978); accord Ethyl Corp. v. EPA, 25 F.3d 1241, 1245 (4th Cir. 1994). As Congress
“broadly conceived” the statutory purpose, EPA v. Mink, 410 U.S. 73, 79–80 (1973),
“disclosure, not secrecy, is the dominant objective of the Act,” Dep’t of the Air Force v.
Rose, 425 U.S. 352, 361 (1976) (emphasis added). FOIA thus provides a statutory
right for citizens “to be informed what their government is up to.” DOJ v. Reporters
Comm., 489 U.S. 749, 773 (1989) (internal quotation marks omitted).
Agency Response. “FOIA provides that, subject to certain statutory
exemptions, federal agencies shall ‘upon any request for records which reasonably
describe such records . . . make the records promptly available to any person.’”
Hanson v. USAID, 372 F.3d 286, 290 (4th Cir. 2004) (quoting 5 U.S.C. § 552(a)(3)(A)).
An agency must respond to a valid request within twenty days (exempting Saturdays,
Sundays, and holidays) upon receipt of such request, including notifying the
requestor immediately of its determination, the reasons therefor, and the right to
appeal any adverse determination. 5 U.S.C. § 552(a)(6)(A)(i).
FOIA does not require the agency to produce responsive, non-exempt records
within the 20-day statutory time limit, but the agency must make such records
“promptly available” after it responds to the request. Id. § 552(a)(3)(A). Although
FOIA does not assign a particular timeframe for an agency to comply with its
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requirement to make documents “promptly available,” the D.C. Circuit has concluded
that, “depending on the circumstances,” this requirement “typically would mean
within days or a few weeks of a ‘determination,’ not months or years.” Citizens for
Resp. & Ethics in Washington v. FEC, 711 F.3d 180, 188 (D.C. Cir. 2013).
Search. An agency responding to a valid request for records “shall make
reasonable efforts to search for [such] records.” 5 U.S.C. § 552(a)(3)(C). Courts
generally consider an agency’s search to be “adequate” if the agency “has conducted
a search reasonably calculated to uncover all relevant documents.” Weisberg v. DOJ,
705 F.2d 1344, 1351 (D.C. Cir. 1983). The agency need not “search every file where
a document could possibly exist” because courts instead consider whether the search
was reasonable “in light of the totality of the circumstances.” Rein v. USPTO, 553
F.3d 353, 364 (4th Cir. 2009). For example, in considering the adequacy and
reasonableness of a search, no court should accept an agency’s “self-imposed
limitation” on the scope of its search when that self-imposed limitation inaccurately
depicts what the requester really seeks. Miccosukee Tribe of Indians of Florida v.
United States, 516 F.3d 1235, 1253 (11th Cir. 2008).
Exemptions. Public access to official records under FOIA “does not apply to
matters” that fall within the discrete categories of exemptions identified by the
statute. See 5 U.S.C. § 552(b). This case primarily concerns two of those exemptions.
FOIA exempts “inter-agency or intra-agency memorandums or letters that would not
be available by law to a party other than an agency in litigation with the agency,”
except where such records were “created 25 years or more before the date on which
the records were requested.” 5 U.S.C. § 552(b)(5). And FOIA exempts the disclosure
of records that “would constitute a clearly unwarranted invasion of personal privacy,”
such as “personnel and medical files.” Id. § 552(b)(6).
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Even if portions of responsive documents are covered by FOIA’s exemptions,
the statute requires that agencies must provide the reasonably segregable portions
of those records that are not subject to a FOIA exemption. Id. § 552(a)(3)(B).
DISPUTED AND UNDISPUTED FACTS
I. Response to NIH’s Statement of Undisputed Facts
Background on NIH’s FOIA Process
1. Undisputed.
2. Undisputed.
3. Undisputed.
4. Undisputed to the extent that NIH generally describes its review
process.
5. Disputed in part. In describing its response, NIH fails to recognize that
all federal agencies must respond to a valid FOIA request within twenty days. See
5 U.S.C. § 552(a)(6)(A).
Sequence Read Archive (SRA)
6. Undisputed.
7. Undisputed.
8. Disputed in part. NIH omits details, including that Dr. Bloom identified
a supplementary table listing “all SARS-CovV-2 deep sequencing data available from
the SRA as of March 30, 2020.” 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/10.1101/2021.06.18.449
051v1.full. Dr. Bloom explained that the “majority of entries in this table refer to a
project (Bio-Project PRJNA612766) by Wuhan University.” Id. This particular
project (PRJNA612766) “represents 241 of the 282 SARS-CoV-2 sequencing run
accessions in the SRA as of March, 30, 2020.” Id. All that data was removed from
the SRA.
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FOIA Request 56712
9. Undisputed. See also Amended Compl. Ex. A (Dkt. No. 16-1) (July 14,
2021, FOIA request).
10. Undisputed.
11. Disputed in part. NIH does not indicate when the National Center for
Biotechnology Information (NCBI) searched its “database for communications
between SRA curators and the submitter of the withdrawn SARS-CoV2 sequences at
Wuhan University.”
12. Undisputed.
13. Undisputed.
14. Undisputed.
15. Undisputed.
16. Undisputed.
17. Undisputed.
18. Undisputed.
19. Undisputed.
20. Disputed in part. Empower Oversight acknowledges that NIH
purported to rely on Exemption 5 to redact information from produced documents and
that NIH withheld production of otherwise responsive documents under
Exemption 5. But Empower Oversight disputes that NIH carried its burden of
demonstrating that the agency complied with 5 U.S.C. § 552(b)(5).
21. Disputed in part. Empower Oversight recognizes that, after “reviewing
materials for the Vaughn index,” NIH now claims that attorney-client privilege “also
applied to one email string.” Garcia-Malene Suppl. Decl. ¶ 29 (Dkt. No. 37-2); see also
Vaughn Index (Dkt. Nos. 37-3, 37-4). Even so, Empower Oversight disputes that NIH
carried its burden of demonstrating that the agency complied with 5 U.S.C.
§ 552(b)(5).
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22. Disputed in part. Empower Oversight acknowledges that NIH
purported to rely on Exemption 6 to redact information from produced documents and
that NIH withheld production of otherwise responsive documents under
Exemption 6. But Empower Oversights disputes that NIH carried its burden to
demonstrate that it complied with 5 U.S.C. § 552(b)(6). “Correspondence does not
become personal solely because it identifies government employees.” Aguirre v. SEC,
551 F. Supp. 2d 33, 54 (D.D.C. 2008).
23. Disputed in part. To the extent that “NIH conducted a segregability
review of the records released,” Empower Oversight disputes that the agency’s review
complied with FOIA and that NIH “could not reasonably segregate” information
subject to an exemption.
24. Disputed. Empower Oversight disputes that NIH properly withheld
information under Exemption 5 and Exemption 6. Empower Oversight also
disagrees with NIH’s suggestion that “material withheld” by the agency would not be
“appropriate for discretionary disclosure because of the amount of misinformation
surrounding the COVID-19 pandemic and its origin.” NIH further suggests that
disclosure could impede candid discussions among its staff “necessary to make
decisions regarding public policy surrounding COVID-19.” But the agency has not
carried its “burden of establishing what deliberative process is involved, and the role
played by the documents in issue in the course of that process.” Coastal States Gas
Corp. v. DOE, 617 F.2d 854, 868 (D.C. Cir. 1980). FOIA favors disclosure here
because the act seeks to improve access to government information and to promote
the principles of openness and accountability in government. Understanding how the
pandemic started is of tremendous public interest, particularly because
understanding how the COVID-19 pandemic started may help prevent future
pandemics.
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FOIA Request 57203
25. Undisputed. See also Amended Compl. Ex. B (Dkt. No. 16-2) (September
30, 2021, FOIA request).
26. Undisputed.
27. Undisputed to the extent that NIH generally describes its “normal
procedure.”
28. Undisputed.
29. Undisputed.
30. Undisputed.
31. Undisputed.
32. Disputed in part. On February 7, 2022, Empower Oversight agrees that
NIH produced 17 pages of records. In the first line of the letter sent to Empower
Oversight, NIH stated that it was the agency’s “final response” to the request.
Amended Compl. Ex. E (Dkt. No. 16-5). Two months later, during an April 8, 2022
hearing, this Court recognized that “almost all” of the records produced in February
came from one “subagency within NIH.” Hearing Trans. 5:24–25, 6:1 (ECF No. 29).
Yet the Court understood that the scope of Empower Oversight’s request went
“beyond” records merely from that subagency. Id. at 6:8. About a month after the
hearing, on May 13, 2022, NIH sent Empower Oversight 777 pages of additional
responsive records.
33. Disputed in part. Empower Oversight accepts NIH’s explanation that,
“in response to Request 57203,” the agency searched the NIH Director’s Executive
Secretariat and the Office of Legislative Policy and Analysis. But Empower
Oversight disputes that these are “the only places” where NIH may need to search to
comply with FOIA.
34. Disputed in part. Empower Oversight acknowledges that NIH
purported to rely on Exemption 5 to redact information from produced documents and
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that NIH withheld production of otherwise responsive documents under
Exemption 5. But Empower Oversights disputes that NIH has carried its burden to
demonstrate that the agency complied with 5 U.S.C. § 552(b)(5).
35. Disputed in part. Empower Oversight recognizes that, after “reviewing
materials for the Vaughn index,” NIH now claims that attorney-client privilege “also
applied to some emails strings that had already been redacted under Exemption 5.”
Garcia-Malene Suppl. Decl. ¶ 49 (Dkt. No. 37-2); see also Vaughn Index (Dkt. Nos.
37-3, 37-4). Empower Oversight disputes that NIH carried its burden of
demonstrating that it complied with 5 U.S.C. § 552(b)(5).
36. Disputed in part. Empower Oversight acknowledges that NIH
purported to rely on Exemption 6 to redact information from produced documents and
that NIH withheld production of otherwise responsive documents under
Exemption 6. But Empower Oversights disputes that NIH carried its burden to
demonstrate that it complied with 5 U.S.C. § 552(b)(6).
37. Disputed in part. To the extent that “NIH conducted a segregability
review of the records released,” Empower Oversight disputes that the agency’s review
complied with FOIA and that NIH “could not reasonably segregate” information
subject to an exemption.
38. Disputed. As with Request 56712, Empower Oversight disagrees with
NIH’s suggestion that any “material withheld, in whole or part,” by the agency under
Exemption 5 or Exemption 6 would not be “appropriate for discretionary disclosures”
in response to Request 57203. To be sure, “Congress did not design the FOIA
exemptions to be mandatory bars to disclosure.” Chrysler Corp. v. Brown, 441 U.S.
281, 293 (1979). NIH has discretion to apply “some balancing and accommodation,”
id., particularly because Request 57203 concerns congressional oversight. FOIA
“does not prevent” NIH “from voluntarily disclosing” this information even if the
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agency believes that it “would otherwise be covered by one of the statutory
exemptions.” Stone v. FBI, 727 F. Supp. 662, 666 (D.D.C. 1990).
FOIA Request 57151
39. Disputed in part. In its Statement of Undisputed Facts at ¶ 9, NIH
admitted that, on July 15, 2021, the agency received Empower Oversight’s first FOIA
request (dated July 14, 2021)—referred to as “Request 56712.” NIH also admitted
(at ¶ 25) that, on October 12, 2021, the agency received Empower Oversight’s second
FOIA request (dated September 30, 2021)—referred to as “Request 57203.” However,
NIH fails to explain that it never sent any correspondence to Empower Oversight
concerning either request, even though applicable regulations required NIH, at a
minimum, to acknowledge receipt of all FOIA requests “in writing within 10 working
days after receipt by the appropriate office.” 45 C.F.R. § 5.24; see also id. at §§ 5.3,
5.4 (explaining that all operating divisions of HHS, including NIH, are subject to this
requirement). NIH correctly notes that Empower Oversight sought a “log” of FOIA
requests submitted to the agency since March 1, 2020—referred to as
“Request 57151.” Empower Oversight submitted that final FOIA request before filing
this lawsuit. It did so to confirm that NIH had received its earlier requests after
months of no correspondence from the agency.
40. Undisputed. See also Amended Compl. Ex. D (Dkt. No. 16-4) (NIH’s
“final response” letter for Request 57151).
II. Empower Oversight’s Statement of Undisputed Facts
Deletions from the SRA
1. Deletions from the Sequence Read Archive are reportedly rare. For the
one-year period between March 2020 and March 2021, the SRA received
approximately 2.4 million submissions of DNA sequencing data. A mere 0.19% of
those submissions were withdrawn. Amy Dockser Marcus & Drew Hinshaw, After
Covid-19 Data Is Deleted, NIH Reviews How Its Gene Archive Is Handled, WALL ST.
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J. (Sept. 13, 2021), available at https://www.wsj.com/articles/aftercovid-19-data-is-
deleted-nih-reviews-how-its-gene-archive-is-handled-11631545490.
2. After Dr. Bloom identified certain deletions from the SRA, the New York
Times also reported that more than 200 data entries from the genetic sequencing of
early COVID-19 cases had been removed from the SRA in the summer of 2020. Carl
Zimmer, Scientist Finds Early Virus Sequences That Had Been Mysteriously Deleted,
N.Y. TIMES (June 23, 2021) (updated July 22, 2021), available at
https://www.nytimes.com/2021/06/23/science/coronavirus-sequences.html. The
National Library of Medicine (the agency within the NIH that manages the SRA)
confirmed that these sequences were “submitted for posting in SRA in March 2020
and subsequently requested to be withdrawn by the submitting investigator in
June 2020.” Id.
NIH’s Correspondence with Senators
3. On June 28, 2021, Senators Grassley, Blackburn, and Marshall sent a
letter to the NIH seeking records and responses to questions regarding the removal
of the genetic sequencing of early COVID-19 cases from the SRA. See Amended
Compl. Ex. G (Dkt. No. 16-7) (June 28, 2021 letter). The Senators explained that the
public has a significant interest in understanding the reason why these early
sequences were removed from the SRA. “Simply put, the American people deserve to
know what their government knows about the origins of this global illness.” Id.
4. NIH responded to the Senators on September 8, 2021. See Amended
Compl. Ex. G (Dkt. No. 16-7) (NIH’s letters addressed to each Senator). The agency
explained to the Senators that “a researcher at Wuhan University” had submitted
the SARS-CoV-2 sequences “for public release status via SRA” in March 2020. Id.
However, three months later, in June 2020, NIH wrote that the National Center for
Biotechnology Information (NCBI) “received a request to withdraw the sequences
from the same researcher.” Id. Although “NCBI withdrew the sequences from the
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SRA,” the agency noted that the sequences “remained available to the world’s
scientists and researchers” on other platforms. Id.
5. The Senators found NIH’s response to be inadequate as the agency
“failed to fully and completely answer all seven questions and failed to provide the
requested records.” Amended Compl. Ex. G (Dkt. No. 16-7) (September 16, 2021
letter).
Empower Oversight’s FOIA Requests
6. As of November 17, 2021, NIH had not provided a determination to
Empower Oversight as to FOIA Request Nos. 56712, 57203, or 57151, despite the
statutory requirement that an agency must respond within twenty working days. See
5 U.S.C. § 552(a)(6)(A).
7. On February 7, 2022, NIH sent a letter to Empower Oversight conveying
the agency’s “final response” to FOIA Request 56712 (dated July 15, 2021) and FOIA
Request 57203 (dated October 12, 2021). Amended Compl. Ex. E (Dkt. No. 16-5).
NIH also explained that the agency had “processed 255 pages of responsive records
for this litigation.” Id. “The information being withheld,” NIH noted, “is protected
from release” under FOIA Exemption 5 and Exemption 6. See id. (citing 5 U.S.C.
§§ 552(b)(5), (b)(6)).
8. On February 24, 2022, Empower Oversight transmitted two
administrative appeal letters in response to the NIH’s production corresponding to
its FOIA requests. See Amended Compl. Ex. F (Dkt. No. 16-6) (Request 56712); id.
Ex. G (Dkt. No. 16-7) (Request 57203).
9. As of July 11, 2022, NIH has not responded to the administrative
appeals.
PROCEDURAL HISTORY
Empower Oversight filed this action on November 17, 2021. See Compl. (Dkt.
No. 1). At that time, NIH had not yet provided Empower Oversight any responsive
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records. Id. ¶ 38. Nor had the agency claimed that any statutory exemptions
prevented disclosure. Id.
NIH first produced responsive records on February 7, 2022. Shortly thereafter,
Empower Oversight sought leave to file an amended complaint, Dkt. No. 14, and the
Court granted its unopposed motion, Dkt. No. 15. Empower Oversight alleged three
violations of FOIA in the amended complaint:
• NIH failed to comply with statutory deadlines, Amended Compl. ¶¶ 44–49
(Dkt. No. 16) (Count I);
• NIH failed to conduct searches reasonably calculated to locate responsive
records, id. ¶¶ 50–57 (Count II); and
• NIH unlawfully withheld agency records under 5 U.S.C. §§ 552(b)(5), (b)(6),
id. ¶¶ 58–63 (Count III).
NIH answered the amended complaint on March 11, 2022. See Answer (Dkt. No. 17).
LEGAL STANDARD
This Court may grant summary judgment only “if the movant shows that 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). A fact is “material” if a dispute over it
“might affect the outcome of the suit under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). This Court must view the evidence in the light
most favorable to the nonmovant, drawing all reasonable inferences in its favor.
Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002).
“FOIA places the burden on the government agency to sustain its action to
withhold information under any of the FOIA Exemptions.” Wickwire Gavin, P.C. v.
U.S. Postal Serv., 356 F.3d 588, 591 (4th Cir. 2004) (citing 5 U.S.C. § 552(a)(4)(B)).
This Court must determine as a matter of law whether the agency properly applied
“FOIA’s prescribed exemptions.” Id. In doing so, the Court must construe the
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statutory exemptions narrowly “in favor of disclosure.” JP Stevens & Co., Inc. v.
Perry, 710 F.2d 136, 139 (4th Cir. 1983) (citing Rose, 425 U.S. at 360–61).
ARGUMENT
I. NIH undisputedly failed to comply with statutory deadlines.
As an undisputed fact, NIH acknowledges that the agency received Empower
Oversight’s first FOIA request on July 15, 2021. Memo at 4, ¶ 9 (referring to
Request 56712). NIH similarly acknowledges that the agency received Empower
Oversight’s second FOIA request on October 12, 2021. Id. at 9, ¶ 25 (referring to
Request 57203).
FOIA requires all federal agencies to respond to valid requests for information
within twenty days. 5 U.S.C. § 552(a)(6)(A)(i). In certain circumstances, an agency
may provide notice to the requester that “unusual circumstances” merit additional
time—up to an additional ten working days—to respond to the request. Id.
§ 552(a)(4)(viii)(II)(aa).
NIH failed to respond to Empower Oversight’s FOIA requests within the
twenty-day period, and NIH failed to provide notice of any unusual circumstances
meriting additional time. NIH first responded to Empower Oversight’s requests on
February 7, 2022—nearly seven months after the agency had received Request 56712
and four months after it had received Request 57203. See Amended Compl. Ex. E
(Dkt. No. 16-5). In its February 7, 2022 letter, NIH confirmed that it was responding
to Empower Oversight’s requests that the agency had received in July 2021
(Request 56712) and October 2021 (Request 42703). Id. NIH also acknowledged that
these requests already were “the subject of the complaint” filed in this lawsuit. Id.
NIH provided no explanation for its delay in responding to both requests. Nor
has NIH ever suggested that the agency in fact complied with FOIA’s statutory
deadlines. Instead, while summarizing the procedural history of this case, NIH
added a footnote urging this Court to simply disregard the deadlines. See Memo at
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12 n.1. NIH contends that the Court needs only to focus on the reasonableness of its
searches (Count II) and whether the agency has carried its burden of demonstrating
that it properly withheld information under statutory exemptions (Count III). Id.
According to NIH, the statutory deadlines are “irrelevant.” Id. (quoting Hornbostel
v. DOI, 305 F. Supp. 2d 21, 28 (D.D.C. 2003)). This Court should reject NIH’s
invitation to brush aside the relevance of FOIA’s statutory deadlines.
As an initial matter, NIH “provides no binding authority” requiring this Court
to ignore the statutory deadlines. Courtrade, v. United States, 243 F. Supp. 3d 699,
706 (E.D. Va. 2017). Insofar as NIH invites this Court to adopt a sweeping new rule
precluding the consideration of statutory deadlines at summary judgment in all FOIA
cases, the agency’s footnote is unpersuasive. Context matters.
The Hornbostel district court actually explained that “a lack of timeliness does
not preclude summary judgment for an agency in a FOIA case” so long as “the agency
finally conducted a reasonable search” and any “withholdings are justified” under
appropriate statutory exemptions. 305 F. Supp. 2d at 28 (quoting Landmark Legal
Foundation v. EPA, 272 F. Supp. 2d 59, 62 (D.D.C. 2003) (emphasis added)). Neither
one of those circumstances exists here. Empower Oversight challenges the
reasonableness of NIH’s search (Count II) and whether the agency carried its burden
of demonstrating that its withholdings were justified under statutory exemptions
(Count III).
In any event, the guiding principle for a court faced with a FOIA summary
judgment motion is reasonableness. See Landmark, 272 F. Supp. 2d at 62. When
placed in its proper context, the Landmark district court did not announce a broad
new rule meant to excuse agencies from complying with statutory deadlines. The
requester in Landmark challenged the reasonableness of the EPA’s search by raising
“several arguments” about timeliness. Id. The district court merely rejected those
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arguments as “irrelevant” to the standard of reasonableness that all courts must
apply when considering the adequacy of an agency’s searches. Id.
Empower Oversight has not challenged the adequacy or reasonableness of
NIH’s searches by advancing arguments about timeliness. Instead, Empower
Oversight has alleged a stand-alone claim (Count I) that NIH failed to comply with
FOIA’s statutory deadlines. Empower Oversight does not concede that NIH “has
released all nonexempt materials” after the agency “failed to meet FOIA’s mandated
standards of promptness.” Tijerina v. Walters, 821 F.2d 789, 799 (D.C. Cir. 1987).
Thus, there is still “a live controversy” in this case. Id. And, unlike the circumstances
in Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982) (per curiam), this Court still has
a judicial function to perform because NIH has not surrendered “all requested
records.” Cf. Reg’l Mgmt. Corp. v. Legal Servs. Corp., 10 F. Supp. 2d 565, 573–74
(D.S.C. 1998) (concluding that “no case or controversy exists” after the agency
produced all requested documents), aff’d in part and remanded in part on other
grounds, 186 F.3d 457 (4th Cir. 1999).
* * *
In sum, NIH’s undisputed failure to comply with FOIA’s statutory deadlines
remains relevant as part of this live controversy. The Court, of course, may decide
separately to consider first whether the agency conducted a reasonable search,
justified all withholdings under an applicable exemption, and surrendered all
requested records. NIH, however, did no such thing.
II. NIH failed to conduct searches reasonably calculated to locate
responsive records.
Courts generally analyze the adequacy of a search by considering the
reasonableness of the agency’s effort in the context of the specific FOIA request. See,
e.g., Larson v. Dep’t of State, 565 F.3d 857, 869 (D.C. Cir. 2009). An adequate search
requires both an understanding of the nature and the scope of Empower Oversight’s
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requests as well as knowledge of where responsive information may be stored within
the agency. This Court should conclude, after reviewing the totality of the
circumstances in this case, that NIH has not “demonstrated that it has conducted a
search reasonably calculated to uncover all relevant documents.” Rein, 553 F.3d at
362 (quoting Ethyl Corp., 25 F.3d at 1246).
A. Summary of relevant circumstances
On February 7, 2022, NIH issued the agency’s “final response” to two of the
FOIA requests that it had received from Empower Oversight—Request 56712 and
Request 57203. Amended Compl. Ex. E at 1 (Dkt. No. 16-5). NIH claimed that it had
“processed 255 pages of responsive records for this litigation” in accord “with the
Court’s order dated November 17, 2021.” Id. at 2.
On March 30, 2022, NIH’s FOIA Officer, Gorka Garcia-Malene, submitted a
declaration explaining the adequacy of the agency’s search and response to Empower
Oversight’s requests. Garcia-Malene Declaration (Dkt. No. 37-1). Garcia-Malene
explained that he personally had “reviewed all documents at issue” in this litigation.
Id. at ¶ 3. And he further explained that:
• NIH’s National Center for Biotechnology Information (NCBI) at the
National Library of Medicine uses a database to track communications
between curators and submitters to various databases (including SRA), and
in response to Items 1 and 2 of FOIA Request 56712, NCBI searched that
database for communications between SRA curators and the submitter of
the withdrawn SARS-CoV2 sequences at Wuhan University. Further,
because the submitter involved in FOIA Request 56712 had provided the
withdrawn sequences under the project ID PRJNA612766, NIH used that
project ID “PRJNA612766” as search term to locate responsive documents,
id. ¶¶ 15 – 16;
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• In response to Item 3 of FOIA Request 56712, Stephen Sherry, Acting
Director of NCBI, searched for responsive emails using the keywords
“preprint,” “jesse bloom,” and “biorxiv,” id. at ¶ 17;
• In response to Item 4 of FOIA Request 56712, “the Communications
program at the [Office of the Director]” searched an undefined universe of
email accounts for emails containing the keywords “NIH statement
sequence read archive,” id. at ¶ 18;
• As a result of these searches, NIH located, processed, and released 238
pages of responsive records to Empower Oversight on February 7, 2022, id.
at ¶¶ 20 – 21;
• In response to FOIA Request 57203, NIH’s Office of Executive Secretariat
searched a database for responsive records using the keywords ”Grassley”
and “Blackburn,” id. at ¶ 31; and
• As a result of this limited search, NIH located, processed, and released
seventeen pages of responsive records to Empower Oversight on February
7, 2022, id. at ¶ 33.
In sum, Garcia-Malene declared that “NIH avers that it conducted searches
reasonably calculated to locate records responsive to” Empower Oversight’s FOIA
requests. Id. at ¶ 43.
On April 8, 2022, during a hearing concerning NIH’s motion to vacate a
scheduling order, this Court recognized that “almost all” of the records that the NIH
had produced in response to FOIA Request 57203 had come from one “subagency
within NIH.” Hearing Trans. 5:24–25, 6:1 (ECF No. 29). The Court further observed
that the scope of Empower Oversight’s request went “beyond” records merely from
that subagency. Id. at 6:8.
On May 13, 2022, NIH released additional responses—more than 1,700 pages
of documents—to Request 56712 and Request 57203. See Garcia-Malene Suppl.
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Declaration ¶¶ 23, 25, 45, 57 (Dkt. No. 37-2). Garcia-Malene never explained how or
why, after NIH had produced 255 pages of responsive records as part of the agency’s
“final response” on February 7, 2022, NIH later located and processed an additional
1,741 pages of records on May 13, 2022.
B. In response to Request 56712, NIH produced at least two
documents clearly indicating the existence of other records that
the agency did not produce.
Courts tend to afford agencies leeway in determining the locations to search
for responsive records. An agency, for example, “is not required to speculate about
potential leads.” Kowalczyk v. DOJ, 73 F.3d 386, 389 (D.C. Cir. 1996). Nor is the
agency “obliged to look beyond the four corners of the request for leads to the location
of responsive documents.” Id. But that does not mean that an agency “may ignore
what it cannot help but know.” Id. No agency may ignore a responsive document
that “clearly indicates the existence of [other] relevant documents, none of which were
disclosed.” Center for Nat’l Security Studies v. DOJ, 215 F. Supp. 2d 94, 110 (D.D.C.
2002), aff’d in part, rev’d in part, and remanded on other grounds, 331 F.3d 918 (D.C.
Cir. 2003). If “the record leaves substantial doubt as to the sufficiency of the search,
summary judgment for the agency is not proper.” Truitt v. Dep’t of State, 897 F.2d
540, 542 (D.C. Cir. 1990).
1. NIH did not produce responsive email correspondence.
Empower Oversight requested, among other things, “all communications
between Jesse Bloom and the NIH, from January 1, 2021 and the present.” Amended
Compl. Ex. A at 2 (Dkt. No. 16-1). In response to this request, NIH produced an
August 11, 2021, email from gbadmin@ncbi.nlm.nih.gov to Dr. Bloom, which has the
subject “GenBank Submissions grp 8164050.” Ex. A at 000092 (attached hereto). The
first line of the email states: “Thank you for your reply.” Id. (emphasis added).
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This email clearly indicates the existence of other relevant records because it
refers to Dr. Bloom’s reply to an earlier email from the agency. Yet no such
correspondence was produced. Neither this particular email nor any other record
produced by the NIH includes the earlier correspondence which prompted the agency
to thank Dr. Bloom for his reply.
2. NIH did not produce earlier emails and an attachment.
Empower Oversight requested all communications to, from, and within NIH
about reports that the Wuhan University sequences had been removed from the
Sequence Read Archive. Amended Compl. Ex. A at 2 (Dkt. No. 16-1). In response to
this request, NIH produced a July 26, 2021, email from Diane Tuncer to Steve Sherry
and Kim Pruitt, which has the subject “FW: FYI – News Report from China’s Xinhua
News Agency.” Ex. A at 000093. Tuncer wrote: “We shared this news article with
NIH OCPL too, and they [NIH OCPL] responded with the following information (see
below). I’m also attaching the last set of QA (which we already sent to you last week).”
Id. (emphasis added). By its plain terms, Tuncer’s email included an attachment—
descried as the “last set” of questions and answers related to the Wuhan University
dataset—that previously had been sent to the email recipients “last week.”
This email clearly indicates the existence of other relevant records because it
refers to the last set of questions and answers that had previously been sent to the
email recipients. Yet NIH produced no such records. Neither this email nor any
other record produced by the NIH includes the attachment or the earlier
correspondence that Tuncer referenced.
C. In response to Request 57203, NIH initially produced records from
only one subagency.
Empower Oversight submitted FOIA Request 57203 to the NIH seeking copies
of “all communications” regarding the letters sent by the Senators and the agency’s
response. See Amended Compl. Ex. B at 2 (Dkt. No. 16-2). In response to that
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request, NIH purported to issue a “final” production of responsive records on
February 7, 2022, which included less than twenty pages of documents. See id. Ex. E
(Dkt. No. 16-5). The February production did not include any agency records
acknowledging the receipt of the Senators’ letters, any agency records assigning the
Senators’ information request to an action office, or any agency records disseminating
drafts of potential responses that NIH considered.
As discussed above, this Court considers the adequacy of the NIH’s search by
assessing “whether the search was reasonably calculated to discover the requested
documents,” and not whether the NIH’s search “actually uncovered every document
extant.” SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). The
Court should conclude that the NIH failed to perform an adequate search based on
the purportedly “final response” to Request 57203 issued by the agency in
February 2022.
NIH did not conduct a search reasonably calculated to discover all
communications requested by Empower Oversight. As the Court previously
recognized during the April 8, 2022 hearing, “almost all” of the records produced in
February came from one “subagency within NIH.” Hearing Trans. 5:24–25, 6:1 (ECF
No. 29). NIH apparently did not consider the scope of Empower Oversight’s request,
which plainly went “beyond” records merely from that subagency. Id. at 6:8. As it
turns out, the original search was inadequate because, in May 13, 2022, NIH sent
Empower Oversight 777 pages of additional responsive records months after the
agency supposedly produced its “final response.”
* * *
Based on the totality of the circumstances, NIH has not demonstrated that it
has conducted searches reasonably calculated to uncover all relevant documents.
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III. NIH failed to carry its burden of demonstrating that it properly
withheld information under FOIA exemptions.
In this case, NIH has failed to satisfy its burden of demonstrating that it
properly withheld information under the FOIA exemptions that it has invoked. See
Wickwire Gavin, 356 F.3d at 591. This Court should conclude, as a matter of law,
that NIH failed to comply with FOIA.
A. NIH improperly withheld information under 5 U.S.C. § 552(b)(5).
Courts generally have construed Exemption 5 as allowing an agency to
withhold information from documents, or portions of documents, that normally would
be “privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 149 (1975). The “clear thrust” of Exemption 5 “is simply to ensure that FOIA
does not deprive the government of the work-product and attorney-client protections
otherwise available to it in litigation.” Hunton & Williams v. DOJ, 590 F.3d 272, 278
(4th Cir. 2010).
To qualify this exemption, a document must “satisfy two conditions: its source
must be a Government agency, and it must fall within the ambit of a privilege against
discovery under judicial standards that would govern litigation against the agency
that holds it,” such as the attorney-client, deliberative process, or attorney work
product privileges. DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001).
1. In response to Request 56712, NIH improperly withheld
information under Exemption 5.
The purpose of the deliberative process privilege “is to prevent injury to the
quality of agency decisions.” Sears, 421 U.S. at 151. “In deciding whether a document
should be protected by the privilege,” courts typically consider whether the document
is “predecisional”—i.e., “it was generated before the adoption of an agency policy”—
and whether the document is “deliberative”—i.e., “it reflects the give-and-take of the
consultative process.” Coastal States Gas Corp., 617 F.2d at 866; accord City of
Virginia Beach v. Dep’t of Commerce, 995 F.2d 1247, 1253–54 (4th Cir. 1993).
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NIH produced several documents with redactions that the agency made
purportedly under Exemption 5. It appears, however, that NIH has redacted
responsive records that are not pre-decisional and not deliberative.
For example, NIH produced a heavily redacted email chain with information
purportedly withheld under Exemption 5. But there is nothing in the record to
suggest a give-and-take exchange as part of the agency’s deliberative decision-making
process. See Ex. A at 000174–77 (attached hereto). At the bottom of the chain, on
Friday, June 18, 2020, at 7:00 pm, Dr. Bloom emailed Francis Collins, Steve Sherry,
and Anthony Fauci to alert them that he had “identified a data set of early Wuhan
SARSCoV-2 sequences that has been deleted from the NIH’s Sequence Read Archive.”
Id. at 000176. Dr. Bloom forwarded a copy of his pre-print analysis and recommended
that NIH commence a “comprehensive analysis of SRA” to search for other potential
deletions related to this “hot-button topic.” Id.
The next morning, June 19, 2020, at 7:34 am, Steve Sherry responded to the
group with “the June 2020 exchange between Wuhan University and SRA submission
staff.” Id. at 000174. Sherry personally redacted names and tracking ID “for
privacy.” Id. And he noted that “this request was received and processed according
to SRA policy.” Id. “SRA does not adjudicate the reason” for the removal. Id. NIH
redacted the entire exchange under Exemption 5.
So, in response to unsolicited correspondence from an external non-NIH party
(Bloom), Sherry shared a communication thread that he described as “the June 2020
exchange between Wuhan University and SRA submission staff” from which
he redacted names and a tracking identification number for “privacy” purposes. In
turn, the NIH FOIA staff later redacts the entire exchange under 5 U.S.C. § 552(b)(5).
This exchange, however, cannot be considered as “pre-decisional” or “deliberative.”
Moreover, the source is not a government agency and this exchange would not be
considered “privileged in the civil discovery context.” Sears, 421 U.S. at 149.
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Similarly, NIH produced a July 26, 2021, email (discussed above) from Tuncer
to Sherry and Pruitt, with the subject “FW: FYI – News Report from China’s Xinhua
News Agency,” that purports to forward “information” from the NIH’s Office of
Communications and Public Liaison (“OCPL”). See Ex. A at 00093. Given the context
of the email, the forwarded “information” appears to pertain to OCPL’s analysis of an
article published in Xinhua, as opposed to deliberation for a NIH policy under
consideration.
To quality as “deliberative,” the record must reflect give-and-take consultation.
Factual information, in contrast, is not covered by the deliberative process
privilege because the release of factual information does not expose the deliberations
or opinions of agency personnel. See, e.g., Coastal States Gas Corp., 617 F.2d at 867.
Factual information is typically available in civil discovery, and its release is not
considered to have a chilling effect on agency deliberations. See Mink, 410 U.S. at
87–88. Empower Oversight cannot see behind the NIH’s redactions, but other records
produced by the NIH raise serious questions regarding whether segregable factual
information has been withheld inside of several large blocks of redactions. See, e.g.,
Ex. A at 00020, 00022, 00086, 00088–91.
2. In response to Request 57203, NIH improperly withheld
information under Exemption 5.
NIH produced responses that the agency actually submitted to Senators
Blackburn, Grassley, and Marshall. See Ex. B at 000009–17 (attached hereto).
However, those response letters failed to include the specific answers to the Senators’
questions, a fact which the Senators themselves noted. Yet, the NIH did gather those
answers in the “Response” paragraphs that it then fully redacted from the documents
produced to Empower Oversight under Exemption 5.
The NIH’s response to the Senators is not a policy document; rather, it is
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a partial response to the Senators’ multipart requests for factual information about
the NIH’s SRA and the Wuhan University researcher’s June 2020 request to
withdraw SARS-CoV-2 genetic data from public access on the SRA. Because the
NIH’s response to the Senators is replete with factual information that is partially
responsive to the Senators’ various requests, it is likely that the “Responses” that the
NIH’s FOIA staff redacted from the annotated version of Senators Blackburn,
Grassley, and Marshall’s June 28th information request also includes factual
information that should have been produced to Empower Oversight without
redaction.
The redaction in full of paragraphs that appear likely to contain the very
information that the Senators publicly complained that the NIH withheld by failing
to answer each of their enumerated questions raises reasonable suspicions. Do the
redacted paragraphs contain additional relevant facts withheld from the Senators?
Do they contain facts inconsistent with what was ultimately disclosed to the Senators
in the September 16th response? It appears that NIH inappropriately relied on
Exemption 5 to redact responsive records.
NIH appears to have redacted factual information from other documents as
well. For example, on a table reflecting the processing of various Congressional
oversight requests, NIH redacted the content of the “Status” column with respect to
responses to the oversight requests that had not been completed on the date that the
table was last updated. See Ex. D at 00041–43 (attached hereto). The status of a
response to a Congressional inquiry is not deliberative. It is a matter of fact.
Similarly, by an email dated March 27, 2022, Renate Myles, circulated a “draft rollout
plan” for the report of NIH’s review of the concerns that arose in connection with the
deletion of the COVID-19 genetic sequences in June of 2020. Id. at 000521–26.
Regardless of its draft status, a rollout plan is not deliberative; it is factual.
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B. NIH improperly withheld information under 5 U.S.C. § 552(b)(6).
Exemption 6 allows an agency to withhold “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). In balancing individual privacy interests
and public disclosure interests, courts first must determine “whether disclosure of
the files ‘would compromise a substantial, as opposed to de minimis, privacy
interest.’” MultiAg Media LLC v. Dep’t of Agriculture, 515 F.3d 1224, 1229 (D.C.
Cir. 2008) (quoting Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873, 874
(D.C.Cir. 1989)). If no significant privacy interest is implicated, “FOIA demands
disclosure.” Id.
1. In response to Request 56712, NIH improperly withheld
information under Exemption 6.
Justifying NIH’s application of Exemption 6 to redact the identities of the
researcher that requested that the COVID-19 genetic data be removed from public
access on the SRA in June of 2020, and the NIH curator that considered the
researcher’s request, NIH’s FOIA Officer asserts that the exemption was applied “due
to the heightened public scrutiny with anything remotely related to COVID-19.”
Garcia-Malene Supplemental Declaration at ¶ 51 (Dkt. No. 37-2). The statute
provides no such “heightened” protections because of COVID-19 or other matters that
may be within NIH’s purview.
Garcia-Malene claims to have reviewed records to prepare for his
Supplemental Declaration. See id. at ¶ 3. One record includes an October 12, 2021,
email from Jesse Bloom to Steve Sherry that discusses “two runs related to pangolin
coronavirus sequences from China” that were deleted from the SRA on March 16,
2020. See Ex. C. at 000625 (attached hereto). The email identifies NIH’s curator as
and the Chinese researcher as the same individual
names redacted elsewhere in the records produced to Empower Oversight.
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Garcia-Malene also asserts that NIH properly redacted signatures, email
addresses, and phone numbers of its employees purportedly pursuant to Exemption 6
because if this type of information were released it “could be used by the public to
send threatening and harassing messages. Garcia-Malene Supplemental Declaration
at ¶ 33. However, NIH used this approach in instances where there was no legitimate
threat of such harassment. NIH repeatedly redacted the official NIH email address
of Dr. Francis Collins, even though he had retired months before NIH’s May 13th
production of responsive records. See, e.g., Ex. C. 000001, 000440, and 000528.
2. In response to Request 57203, NIH improperly withheld
information under Exemption 6.
Justifying NIH’s application of Exemption 6 to signatures, email addresses,
and phone numbers of its employees, Garcia-Malene states that if this type of
information were released it “could be used by the public to send threatening and
harassing messages” to NIH staff. Garcia-Malene Supplemental Declaration at ¶ 53.
However, NIH used this approach in instances where there was no legitimate threat
of such harassment. NIH repeatedly redacted the official NIH email address of Dr.
Francis Collins, even though he had retired months before NIH’s May 13th
production of responsive records. See, e.g., Ex. D. 000053, 000072.
* * *
NIH has not demonstrated that it properly withheld information under the
FOIA exemptions that it purported to apply.
CONCLUSION
For the foregoing reasons, this Court should deny NIH’s motion for summary
judgment.
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Respectfully submitted,
/s/ Jeffrey S. Beelaert
Jeffrey S. Beelaert (VSB No. 81852)
STEIN MITCHELL BEATO & MISSNER LLP
901 15th Street NW, Suite 700
Washington, DC 20005
Tel: (202) 661-0923
Fax: (202) 296-8312
Email: jbeelaert@steinmitchell.com
Attorney for Plaintiff Empower Oversight
Whistleblowers & Research
July 11, 2022
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