Memorandum Of Law In Support Of Defendant’S Motion To Seal: WHISTLEBLOWERS & RESEARCH, v. NATIONAL INSTITUTES OF HEALTH,

Summary

The National Institutes of Health (NIH) asks the court to seal portions of the plaintiff's opposition to its summary judgment motion and a portion of Exhibit C. NIH states that it learned from reading the opposition that it had inadvertently failed to redact two names it had redacted elsewhere, those of the Sequence Read Archive curator and a foreign researcher, which it withheld under FOIA Exemption 6. It argues that there is no public interest in the names and that the individuals have a substantial privacy interest. NIH asks that the material stay sealed pending a summary judgment ruling from Judge Brinkema. The memorandum says the plaintiff opposes the motion and is dated July 15, 2022.

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Case 1:21-cv-01275-LMB-JFA Document 44 Filed 07/15/22 Page 1 of 5 PageID# 822



                      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 TO SEAL

       For the reasons set forth in detail below, Defendant National Institutes of Health (“NIH”),

through undersigned counsel, moves the Court pursuant to Local Civil Rule 5(C), to seal portions of

Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment (Dkt. 47) and a portion of one

of the accompanying exhibits (Exhibit C, Dkt. 47-3).

                                        BACKGROUND

       In this case brought pursuant to the Freedom of Information Act, 5 U.S.C. §§ 551–59 (2018)

(“FOIA”), Plaintiff Empower Oversight Whistleblowers & Research seeks documents from the

NIH, based on three separate FOIA requests. See Am. Compl. (Dkt. 16) ¶¶ 24-27. As a general

matter, the requests concern a foreign researcher’s submission of COVID-19 genetic sequences, and

subsequent request to withdraw those sequences, to the Sequence Read Archive (“SRA”), which is

hosted by an NIH component. 1 Def.’s Summ. J. Mem. (Dkt. 37) at 4 (hereafter “Def.’s Mem.”).



1
  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”). Id.
                                                 1

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Relevant here, NIH withheld, pursuant to FOIA’s personal privacy interests exemption, 5 U.S.C. §

552(b)(6), the names and email addresses of certain NIH employees, as well as the foreign researcher

whose data is at the center of Plaintiff’s request. Id. at 25-29.

        NIH has moved for summary judgment. Relevant here, it argued that the names and email

address of certain NIH employees and the foreign researcher were properly withheld under

Exemption 6 to FOIA because release would be a “clearly unwarranted invasion of privacy.” Def.’s

Mem. at 25 (citing Solers v. Internal Revenue Serv., 827 F.3d 323, 332 (Fourth Circ. 2016)). There is no

public interest in these names, as neither “‘would shed light on an agency’s performance of its

statutory duties or otherwise let citizens know what their government is up to.’” Id. (quoting Solers,

827 F.3d at 332). Conversely, substantial privacy interests, like “‘avoiding embarrassment, retaliation

or harassment and intense scrutiny by the media that would likely follow disclosure’” favored

withholding the names. Id. (quoting Judicial Watch, Inc. v. U.S. Dep’t of State, 875 F. Supp. 2d 37, 46

(D.D.C. 2012)).

        While reading Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment (Dkt.

41), NIH learned for the first time that it inadvertently failed to redact two names it had otherwise

redacted elsewhere in its productions to Plaintiff. In its Opposition, Plaintiff appears to argue that

NIH has waived the protections of Exemption 6 by this inadvertent disclosure. Opp’n at 25. The

Opposition and Exhibit C (Dkt. 41-3) specifically states, without redaction, the two names—the

SRA curator and the foreign researcher.

        However, NIH’s motion for summary judgment is still pending. This means Judge

Brinkema has not yet ruled on whether NIH appropriately applied Exemption 6 to shield these




                                                     2

Case 1:21-cv-01275-LMB-JFA Document 44 Filed 07/15/22 Page 3 of 5 PageID# 824



names from disclosure. Accordingly, NIH moves to seal the portions of Plaintiff’s Opposition and

Exhibit C that contain these names. 2

                                              ARGUMENT

          Public access to judicial records is “protected both by the common law and the First

Amendment.” Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). “The common

law presumes a right of the public to inspect and copy ‘all judicial records and documents.’” Id.

(quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)).

          However, the common law presumption in favor of public access can be overcome by a

showing that a litigant has “some significant interest that outweighs the presumption.” Rushford v.

New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988). Likewise, litigants can overcome the

First Amendment right of public access to documents by showing that “denial of access [is] . . .

necessitated by a compelling government interest and narrowly tailored to serve that interest.” Id.

Before ordering the sealing of documents, a court “must give the public notice of the request to seal

and a reasonable opportunity to challenge the request; it must consider less drastic alternatives to

sealing; and if it decides to seal it must state the reasons (and specific supporting findings) for its

decision and the reasons for rejecting alternatives to sealing.” Id.; see also Ashcraft v. Conoco, Inc., 218

F.3d 288, 302 (4th Cir. 2000). This Court has incorporated these “Ashcraft factors” into its local

rules. See LOC. CIV. R. 5. 3


2
  NIH seeks to seal these materials unless and until Judge Brinkema determines that this information
is subject to disclosure, at which point NIH concedes this Court must revisit this issue.
3
    Local Rule 5(C) requires that the party moving to seal documents provide:

          (1) [a] non-confidential description of what is to be sealed; (2) [a] statement as to why
          sealing is necessary, and why another procedure will not suffice; (3) [r]eferences to
          governing case law; and (4) [u]nless permanent sealing is sought, a statement as to the
          period of time the party seeks to have the matter maintained under seal and as to how
          the matter is to be handled upon unsealing.


                                                      3

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        NIH respectfully submits that all relevant standards, as well as the Ashcraft factors, are

satisfied by the circumstances presented here, and there is a “compelling government interest” that

outweighs the presumption of public access to portions of the Opposition and Exhibit C. Rushford,

846 F.2d at 253. First, by filing this public memorandum, Defendant has complied with the first

Ashcraft factor, which requires public notice and opportunity to comment. Plaintiff, who opposes

this motion, therefore has an opportunity to raise its objections with the Court.

        Second, the materials should be sealed here unless and until Judge Brinkema finds the

information should be disclosed. NIH withheld the names of the SRA curator and the foreign

researcher who submitted the sequences, and then requested withdrawal, pursuant to 5 U.S.C. §

552(b)(6). Known as “Exemption 6,” this statutory provision safeguards from disclosure under

FOIA “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). As detailed in NIH’s

summary judgment brief, disclosure of these names does not reveal anything about how NIH

operates, i.e., there is no public interest in learning these names. Def.’s Mem. at 26, 28-30.

Conversely, the individuals have a substantial privacy interest in avoiding harassment or media

scrutiny that would likely follow disclosure. Id. at 27-28, 30.

        NIH inadvertently failed to redact the two names at issue on at least one page of its FOIA

productions to Plaintiff. 4 In opposing NIH’s summary judgment motion, Plaintiff appears to argue

that NIH has waived the protections of Exemption 6 because of this mistake. Opp’n at 25. That is




        The rule also provides that the moving party must provide a proposed order reciting “the

findings required by governing case law to support the proposed sealing.” Id.

4
 NIH is reviewing whether other materials leave unredacted the two names at issue. To its
knowledge, the only instances of the names appearing on the public docket are on one page of
Plaintiff’s Opposition and on one page of Exhibit C.
                                                    4

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incorrect. “[A]n agency’s inadvertent disclosure of individual names and other [personally

identifiable information] rarely waives privacy interests under Exemption 6 because those interests

belong to the individuals, not to the agency.” Amiri v. Nat’l Sci. Found., 2021 WL 4438910, at *8

(D.D.C. Sept. 28, 2021), aff’d, 2022 WL 1279740 (D.C. Cir. Apr. 28, 2022); see also Bartko v. U.S. Dep’t

of Justice, 167 F. Supp. 3d 55, 68 (D.D.C. 2016) (same, with respect to Exemption 7(C)). Plaintiff has

put forward no evidence that either individual has waived their privacy interests here. Sealing is

therefore necessary to protect this information from any further public dissemination, beyond that

which the Opposition and Exhibit C have already caused. This is the least drastic means available,

in that NIH seeks only to redact the small portions of Plaintiff’s Opposition and Exhibit C that

reveal the withheld information. Accordingly, NIH has met its burden to demonstrate sealing is

appropriate here. The Court should maintain the status quo and seal the portions of Plaintiff’s

Opposition and Exhibit C that reference these names, pending a summary judgment ruling from

Judge Brinkema requiring disclosure of these names.

                                          CONCLUSION

        For the foregoing reasons, NIH respectfully requests that the Court grants its motion to seal.

Dated: July 15, 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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