Judicial Watch, Inc. v. U.S. Department of Health and Human Services ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
v. Case No. 1:19-cv-00876 (TNM)
U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Defendant.
MEMORANDUM OPINION
Advanced Biosciences Resources (“ABR”) partnered with Planned Parenthood and other
abortion providers to dismember fetuses and sell their parts for research. It sold second-trimester
livers and thymi for hundreds of dollars apiece. The same for brains, eyes, and lungs. After
tacking on fees for services like shipping and cleaning, ABR could collect over $2,000 on a
single fetus it purchased from Planned Parenthood for $60. The federal government participated
in this potentially illicit trade for years.
Plaintiff Judicial Watch, Inc. sued under the Freedom of Information Act to obtain details
from the Food and Drug Agency and the National Institutes of Health—two components of
Defendant U.S. Department of Health and Human Services (collectively, “the Government”)—
on their involvement in this bloody business. The Government produced hundreds of
documents, but, as relevant here, redacted some information under FOIA’s Exemption 4,
claiming that the information is confidential and commercial.
Before the Court are the parties’ cross-motions for summary judgment. The Court
determines that the Government cannot rely on Exemption 4 to shield this information from
disclosure. As a result, the Court will deny the Government’s motion for summary judgment and
grant Judicial Watch’s cross-motion.
I.
In September 2018, Judicial Watch submitted FOIA requests to FDA and NIH. It asked
for information relevant to contracts between the Government and ABR. Def.’s Statement of
Material Facts (“DSMF”) ⁋⁋ 1–2, ECF No. 15. Judicial Watch’s requests to each agency were
identical. It sought these records for the 2013 to 2018 years:
1. All contracts and related documentation between [FDA/NIH] and Advanced
Biosciences Resources (“ABR”) for the provision of human fetal tissue to be
used in humanized mice research.
2. All records reflecting the disbursement of funds to ABR for the provision of
human fetal tissue to be used in humanized mice research.
3. All guidelines and procedural documents provided to ABR by [FDA/NIH]
relating to the acquisition and extraction of human fetal tissue for its provision
to the [FDA/NIH] for humanized mice research.
4. All communications between [FDA/NIH] officials and employees and
representatives of ABR related to the provision by ABR to the [FDA/NIH] of
human fetal tissue for the purpose of humanized mice research.
Id.; Pl.’s Resp. to Def.’s Statement of Material Facts and Further Statement of Facts
(“PSMF”) ⁋⁋ 1–2, ECF No. 16.
When no records were released, Judicial Watch sued. DSMF ⁋ 5. FDA then produced
740 pages of potentially responsive records. Id. ⁋ 6. NIH produced 676 pages. Id. ⁋⁋ 6, 25.
Each set of records was subject to partial redactions under FOIA’s Exemption 4, which protects
confidential commercial information. Id. ⁋ 6; 5 U.S.C. § 552(b)(4). Judicial Watch challenges
these withholdings. Pl.’s Mem. in Opp’n to Def.’s Mot. for Summ. J. and in Supp. of Pl.’s
2
Cross-Mot. (“Pl.’s Opp’n/Cross-Mot.”) at 8–9, ECF No. 16. 1 Before the Court are the parties’
cross-motions for summary judgment. 2
II.
Courts decide the “vast majority” of FOIA cases on motions for summary judgment.
See Brayton v. Off. of U.S. Trade Repr., 641 F.3d 521, 527 (D.C. Cir. 2011). To prevail in this
procedural posture, a movant must show that “there is no genuine dispute as to any material fact”
and that it “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). A factual dispute is material if it could alter the outcome of the suit under the
substantive governing law. Anderson, 477 U.S. at 248. And “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party,” the dispute is genuine. Id.“The mandate of . . . FOIA calls for broad disclosure of Government records.” CIA v.
Sims, 471 U.S. 159, 166 (1985). Federal agencies must “disclose information to the public upon
reasonable request unless the records at issue fall within specifically delineated exemptions.”
Judicial Watch, Inc. v. FBI, 522 F.3d 364, 365–66 (D.C. Cir. 2008). The “nine specific
exemptions” are “construed narrowly in keeping with FOIA’s presumption in favor of
disclosure.” Pub. Citizen, Inc. v. OMB, 598 F.3d 865, 869 (D.C. Cir. 2010); see also FBI v.
Abramson, 456 U.S. 615, 630 (1982) (referring to “the oft-repeated caveat that FOIA exemptions
are to be narrowly construed”).
“The agency bears the burden of establishing that a claimed exemption applies.” Citizens
for Resp. & Ethics in Wash. v. DOJ, 746 F.3d 1082, 1088 (D.C. Cir. 2014). “[S]ummary
1
All page citations refer to the page numbers that the CM/ECF system generates.
2
The Court has jurisdiction under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331.
3
judgment may be granted on the basis of agency affidavits if they contain reasonable specificity
of detail rather than merely conclusory statements, and if they are not called into question by
contradictory evidence in the record or by evidence of agency bad faith.” Pub. Citizen v. HHS,
975 F. Supp. 2d 81, 94 (D.D.C. 2013) (cleaned up). Courts review the applicability of FOIA
exemptions de novo. King v. DOJ, 830 F.2d 210, 217 (D.C. Cir. 1987).
III.
To begin with, the Government says that FOIA’s concern is with “the operations or
activities of the government,” not private parties like ABR. Def.’s Mem. in Supp. of Mot. for
Summ. J. (“Def.’s Mot.”) at 23, ECF No. 15 (cleaned up). True enough. But Judicial Watch’s
FOIA request does concern “the operations or activities of the government.” Here, ABR was a
supplier of human body parts to the Government and thus is implicated in the Government’s
activities. They were business partners. Judicial Watch wants to know how the Government
used taxpayer dollars participating in this trade. This is a far cry from when the Government
only acquires private documents through its role as a regulator or law maker. Cf. Pub. Citizen
Health Rsch. Grp. v. FDA, 704 F.2d 1280, 1282 (D.C. Cir. 1983) (explaining that companies had
“submitted the data requested by the [plaintiff] to the FDA as part of the agency’s investigation
of” the product they manufactured).
This leads us to the crux of the case. This case concerns FOIA’s Exemption 4, which
allows the Government to withhold “trade secrets and commercial or financial information
obtained from a person” that are “privileged or confidential.” 3 5 U.S.C. § 552(b)(4). Neither
party contends that the withheld information constitutes “trade secrets,” so whether Exemption 4
3
Judicial Watch is not challenging the adequacy of the Government’s search or its withholdings
under Exemption 6. PSMF ⁋⁋ 10, 18; Def.’s Mem. in Supp. of Mot. for Summ. J. (“Def.’s
Mot.”) at 17–18, ECF No. 15.
4
applies hinges on whether the withheld information is: (1) “commercial or financial”; (2)
“obtained from a person”; and (3) “privileged or confidential.” Pub. Citizen Health Rsch. Grp.,
704 F.2d at 1290.
Judicial Watch challenges the Government’s invocation of Exemption 4 as to two types
of information: (A) the names and addresses of ABR’s contract laboratories; and (B) unit prices
and line-item amounts in contracts between ABR and the Government. See Pl.’s Opp’n/Cross-
Mot. at 9–15. For the former, Judicial Watch claims that the information is not commercial. See
id. at 9–10. For the latter, it contends that the information is not confidential. See id. at 10–15.
The Court agrees on both counts.
A.
Consider first whether the names and addresses of ABR’s contract labs constitute
“commercial” information that FOIA’s Exemption 4 protects from disclosure. 4 Judicial Watch
concedes that the withheld information is “obtained from a person.” Id. at 8 n.3. And it does not
argue that the information is not “confidential.” See id. at 9–10.
Information is “commercial” and therefore comes within Exemption 4 “if, in and of itself,
it serves a commercial function or is of a commercial nature.” Nat’l Ass’n of Home Builders v.
Norton, 309 F.3d 26, 38 (D.C. Cir. 2002) (cleaned up). That means that “records that actually
reveal basic commercial operations, such as sales statistics, profits and losses, and inventories, or
relate to the income-producing aspects of a business, fall within the scope of ‘commercial’
4
There is some discussion in the briefing over whether Judicial Watch also challenges the
Government’s withholding of the names and addresses of ABR’s third-party customers. See
Pl.’s Opp’n/Cross-Mot. at 9; Def.’s Mem. in Opp’n to Pl.’s Cross-Mot. and Reply in Supp. of
Def.’s Mot. for Summ. J. (“Def.’s Opp’n/Reply”) at 6–7, ECF No. 20. After some initial
confusion, the parties seem to agree that Judicial Watch is not raising such a challenge. See Pl.’s
Reply in Supp. of Cross-Mot. for Summ. J. (“Pl.’s Reply”) at 5 & n.1, ECF No. 22.
5
information.” Pub. Citizen, 975 F. Supp. 2d at 99 (cleaned up); see also id. (explaining that
“documents that contain revenue, net worth, income, and EBITDA information are plainly
commercial” (cleaned up)).
The exemption covers a broader category of information, too. It “applies (among other
situations) when the provider of the information has a commercial interest in the information
submitted to the agency.” Baker & Hostetler LLP v. U.S. Dep’t of Com., 473 F.3d 312, 319
(D.C. Cir. 2006). But the definition of “commercial” is not boundless—indeed, “the D.C.
Circuit has cautioned that, consistent with the narrow construction given to FOIA exemptions,
not every bit of information submitted to the government by a commercial entity qualifies for
protection under Exemption 4.” Pub. Citizen, 975 F. Supp. 2d at 101 (cleaned up).
The Government argues that ABR has a commercial interest in the names and addresses
of its contract laboratories. See Def.’s Mem. in Opp’n to Pl.’s Cross-Mot. and Reply in Supp. of
Def.’s Mot. for Summ. J. (“Def.’s Opp’n/Reply”) at 7–9, ECF No. 20. For evidentiary support,
it cites two sources: (1) an agency declaration; and (2) a letter from ABR to the Government
explaining why the redacted information is confidential and commercial. See id. at 7–8. This
evidence falls well short of what the Government needed to show on the commercial prong.
Take the declaration. Although the Government did not analyze the commercial prong at
all in its initial brief, see Def.’s Mot. at 25–26, it submitted a supplemental declaration in its
combined opposition and reply from a director within the FDA, see Suppl. Decl. of Howard R.
Philips (“Suppl. Philips Decl.”), ECF No. 20-2. As to the commercial prong, the declaration
states:
Firms like ABR can have a financial interest in the identities of its business
relationships and basic commercial operations. Disclosure of ABR’s contract
laboratories, for example, could reveal ABR’s sources for specialized services that
could be an important aspect of ABR’s commercial operations. Companies like
6
ABR can also have a financial interest in the identities of their . . . contract
laboratories because other companies can poach . . . contract laboratories. For
these reasons, FDA routinely redacts the identity of . . . non-public business
affiliates (including contractors) because firms often have a financial interest in
keeping that information confidential.
Id. ⁋ 9; see also Def.’s Opp’n/Reply at 7–8 (relying on this passage).
If speculation sufficed, this litany would be fine. But the supplemental declaration says
nothing about why ABR in fact has a commercial interest in the names and addresses of its
contract labs. Indeed, it appears not to rely on actual concerns raised by ABR at all. It states
only in general terms that entities “like ABR” “can have” or “often have” a “financial interest” in
such information. Suppl. Philips Decl. ⁋ 9 (emphasis added). And it theorizes about possible
consequences that could befall a “[c]ompan[y] like ABR” if the information were disclosed:
“other companies can poach . . . [the] contract laboratories.” Id. Or perhaps disclosure, “for
example, could reveal ABR’s sources for specialized services.” Id. (emphasis added). These
generalized observations are not evidence. The Government asserts no commercial interest on
behalf of ABR specifically.
ABR’s letter gets the Government no further. In response to a letter from the
Government asking ABR to confirm that the Government should continue to withhold the
information at issue, ABR explained—as to the identities of the contract labs specifically—only
the following:
• “[T]he names and addresses of contract laboratories (including the names and
identifying information related to specific researchers and facility employees)
ABR works with are in fact confidential commercial information belonging to
ABR, and should continue to be withheld by the FDA as (b)(4) material.”
• “With respect to . . . the names and addresses associated with contract
laboratories ABR works with . . . , the information at issue is both confidential
and commercial in nature.”
• “Because ABR has both customarily and actually treated this information as
private, and has a commercial interest in the information, it is appropriately
exempted from disclosure under (b)(4) and should be withheld.”
7
Decl. of Katherine Uhl Exs. (“Uhl Decl. Exs.”) at 23–24, ECF No. 15-2 (emphasis added); see
also Def.’s Opp’n/Reply at 7 (relying on this letter). These conclusory assertions do not suggest
to the Court, even at the highest level of generality, why ABR has a commercial interest in the
information. And other statements in the letter pertain only to the confidentiality prong. See,
e.g., Uhl Decl. Exs. at 24 (“ABR does not customarily disclose or make publicly available the
names and addresses associated with the contract laboratories it works with . . . .”). The
Government has thus not met its burden to show that the names and addresses of ABR’s contract
labs are commercial in nature.
This determination finds support from other cases in this district. For example, in Public
Citizen v. HHS, the court emphasized that conclusory statements are not enough for the
Government to withhold information under Exemption 4. 975 F. Supp. 2d at 103. The court
found the agency’s declarations lacking, explaining that “the defendant makes only the
conclusory statement that ‘[t]he records contain [the companies’] commercial or financial
information’” and that “[t]he Vaughn indices offer no additional details on this critical question.”
Id. (cleaned up). The court then looked to the companies’ declarations, as they had intervened in
the case, and decided that they too were insufficient: “The declarants for the defendants focus on
the highly confidential nature of the [withheld information], but do not address the key issue of
whether this category of withheld documents contains commercial information.” Id. at 104
(emphasis added). The court ultimately concluded that the Government failed to prove the
commercial prong and that it “w[ould] not speculate,” given the dearth of information before it.
Id.
Here, as in Public Citizen v. HHS, the Government and ABR provided no specifics on the
“key issue” of whether the identities of ABR’s contract labs are commercial. It is, of course,
8
plausible that ABR could have a commercial interest in the names and addresses of its contract
laboratories. But neither the Government nor ABR have given the Court a reason why that is the
case here. Cf. COMPTEL v. FCC, 910 F. Supp. 2d 100, 117 (D.D.C. 2012) (explaining that
statements claiming that information was redacted because it was “competitively sensitive” and
would “reveal protected information” were “conclusory assertions” and “insufficient to show
that Exemption 4 was appropriately invoked” (cleaned up)).
It was even more important for the Government (or ABR) to address the commercial
nature of the names and addresses, given that this type of information is not obviously
commercial. Take COMPTEL, where the plaintiff challenged the agency’s redaction of the
names of certain employees under Exemption 4. See id. at 115–16. The court assumed that
“corporations can have a commercial interest in the names of certain staff,” but explained that “it
is not a certainty that a corporation would have a commercial interest in the names of every one
of its employees”; so, “the [agency] must state why this information is commercial in nature.”
Id. at 116 (emphasis added). The court found that the agency had not met its burden. See id.; see
also Besson v. U.S. Dep’t of Com., 480 F. Supp. 3d 105, 112 (D.D.C. 2020) (explaining that “a
person’s identity” is not “the type of commercial information [typically] protected by Exemption
4” so “an agency seeking to withhold employee names by invoking Exemption 4 must identify
specific evidence demonstrating something unique about the names that logically or plausibly
renders them commercial in nature or function” (emphasis added) (cleaned up)). 5
5
As the Government points out, see Def.’s Opp’n/Reply at 8, some cases have dealt only with
employee names and addresses. Here, the Court considers the names and addresses of ABR’s
contractors. But even so, the relevant cases do not seem to limit their holdings based on this fact.
See, e.g., Besson, 480 F. Supp. 3d at 112 (“Courts in this jurisdiction typically have not
recognized a person’s identity as the type of commercial information protected by Exemption
4.” (cleaned up)). And names and addresses are unlike documents that would be considered
“plainly commercial,” such as those “contain[ing] revenue, net worth, income, and EBITDA
9
It bears repeating that this could have been a different case had the Government or ABR
adequately explained themselves. But they did not. And ABR did not intervene to defend its
interests, as companies have in similar cases. Cf. Pub. Citizen, 975 F. Supp. 2d at 91 (explaining
that the court had granted the “unopposed motions of [the companies] to intervene”). FOIA
favors disclosure, and the burden to avoid disclosure rests with the Government. See Citizens for
Resp. & Ethics in Wash., 746 F.3d at 1088. It did not meet that burden here. The Court will
grant summary judgment to Judicial Watch on this issue and order the Government to disclose
the names and addresses of ABR’s contract laboratories pursuant to Judicial Watch’s FOIA
request.
B.
Judicial Watch also seeks unit prices and line-item amounts that were redacted from
contracts between ABR and the Government. Pl.’s Opp’n/Cross-Mot. at 10–15. The
Government argues that it has properly withheld the information under Exemption 4. Def.’s
Mot. at 24–25. Judicial Watch contends that the exemption does not apply because the
information is not “confidential.” Pl.’s Opp’n/Cross-Mot. at 10–11, 14. It does not contest that
the information is “obtained from a person” or that it is “commercial.” Id. at 8 n.3, 10.
The Supreme Court has explained that to discern the meaning of “confidential,” it looks
to “what that term’s ordinary, contemporary, common meaning was when Congress enacted
FOIA in 1966.” Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2362 (2019). And it
“meant then, as it does now, ‘private’ or ‘secret.’” Id. at 2363 (quoting Webster’s Seventh New
information.” Pub. Citizen, 975 F. Supp. 2d at 99 (cleaned up). In any event, the Court does not
rely on these cases for the outcome here. Whether names and addresses of contractors (rather
than employees) are typically treated as confidential is not determinative. The Government did
not meet its burden that Exemption 4 applies either way.
10
Collegiate Dictionary 174 (1963)). In Argus Leader, the Court held that “information
communicated to another remains confidential whenever it is customarily kept private, or at least
closely held, by the person imparting it.” Id.
It also explained that another condition might be required for information to be
considered confidential—that “the party receiving” the information “provide[] some assurance
that it will remain secret.” Id. But the Court left the question open. See id. (stating that “there’s
no need to resolve” whether “privately held information lose[s] its confidential character for
purposes of Exemption 4 if it’s communicated to the government without assurances that the
government will keep it private”). 6
With that said, information cannot be “confidential” if it is already in the public domain.
See CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1154 (D.C. Cir. 1987) (“To the extent that any
data requested under FOIA are in the public domain, the submitter is unable to make any claim
to confidentiality—a sine qua non of Exemption 4.”); Niagara Mohawk Power Corp. v. U.S.
Dep’t of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999) (“[I]f identical information is truly public,
then enforcement of an exemption cannot fulfill its purposes.”). This exception reflects the
commonsense intuition that an open secret is no secret at all. Thus, under the D.C. Circuit’s
“public-domain doctrine, materials normally immunized from disclosure under FOIA lose their
6
The Government argues that FOIA’s legislative history should inform the Court’s application
of the confidentiality prong—specifically, that it helps answer the question that Argus Leader left
open. See Def.’s Mot. at 23 (“FOIA’s legislative history confirms” that the government need not
“show that it made assurances of confidentiality in order to establish that the information would
be exempt”). While this case does not require the Court to weigh in on this question, the
Government’s approach runs counter to Supreme Court teaching. The Court criticized a 1974
D.C. Circuit decision, which relied on legislative purpose and legislative history, as “a relic from
a bygone era of statutory construction.” Argus Leader, 139 S. Ct. at 2364 (cleaned up). The
Court counseled that it could not “approve such a casual disregard of the rules of statutory
interpretation” and that “[i]n statutory interpretation disputes, a court’s proper starting point lies
in a careful examination of the ordinary meaning and structure of the law itself.” Id.11
protective cloak once disclosed and preserved in a permanent public record.” Cottone v. Reno,
193 F.3d 550, 554 (D.C. Cir. 1999).
Although the Government bears the burden to show that a FOIA exemption applies,
“when a plaintiff contends that allegedly confidential business records are publicly available, it
‘has the burden of showing that there is a permanent public record of the exact portions’ it
seeks.” Story of Stuff Project v. U.S. Forest Serv., 366 F. Supp. 3d 66, 75 (D.D.C. 2019)
(quoting Davis v. DOJ, 968 F.2d 1276, 1280 (D.C. Cir. 1992)). This is so because, “were it
otherwise, the government would face the daunting task of proving a negative: that requested
information had not been previously disclosed.” Id. (cleaned up).
1.
Judicial Watch does not appear to dispute that, in general, unit pricing could be
confidential information. It instead argues that the pricing information is no longer confidential.
Recall that Judicial Watch seeks unit pricing information for the years 2013–2018. DSMF ⁋⁋ 1–
2. Judicial Watch contends that this information is in the public domain in two ways: (a) for
2013–2015 records, through several fee schedules appended to a report released by the U.S.
Senate’s Judiciary Committee; and (b) for 2016–2018 records, through the Government’s
disclosures in responding to this FOIA request. See Pl.’s Opp’n/Cross-Mot. at 10–15; Pl.’s
Reply in Supp. of Cross-Mot. for Summ. J. (“Pl.’s Reply”) at 11–15, ECF No. 22. The Court
considers each.
a.
Before Judicial Watch’s FOIA request, the U.S. Senate Judiciary Committee investigated
ABR and several other companies. PSMF ⁋ 33; Def.’s Resp. to Pl.’s Further Statement of Facts
⁋ 33, ECF No. 20-1. The Committee probed “issues involving the buying and selling of fetal
12
tissue in violation of 42 U.S.C. § 289g-2.” Decl. of Meredith Di Liberto Exs. (“Di Liberto Decl.
Exs.”) at 8, ECF No. 16-1. That statute prohibits transferring human fetal tissue “for valuable
consideration,” 42 U.S.C. § 289g-2(a)—defined as an amount other than “reasonable payments
associated with the transportation, implantation, processing, preservation, quality control, or
storage of human fetal tissue,” id. § 289g-2(e).
The investigation generated a report, which found (among other things) that ABR had
“received payments for fetal tissue specimens far in excess of their demonstrated costs of the
allowable categories” and had not attempted “to contemporaneously determine these relevant
costs when setting prices.” Di Liberto Decl. Exs. at 9. Attached to the report were ABR fee
schedules for the years 2010–2015. PSMF ⁋ 34; see also Di Liberto Decl. Exs. at 13–19. 7
Judicial Watch contends that the redacted pricing information from 2013–2015 corresponds with
the fee schedules disclosed by the Committee and thus is in the public domain. See Pl.’s
Opp’n/Cross-Mot. at 12.
The Court finds that the fee schedules appended to the Committee’s report are enough to
put the information that Judicial Watch seeks for the 2013–2015 years in the public domain. The
Government acknowledges that the fee schedules are in the public domain but contends that
Judicial Watch is entitled to no more than those precise documents. 8 See Def.’s Opp’n/Reply at
10–12. But the Government is mistaken.
7
The Judiciary Committee ultimately referred ABR to the FBI for investigation and potential
prosecution. Di Liberto Decl. Exs. at 11, 21–22.
8
The Government released an unredacted version of the 2015 fee schedule during briefing
because it was “the only fee schedule in its production that is identical to fee schedules identified
in Plaintiff’s filings as appended to the Senate Report.” Def.’s Opp’n/Reply at 10 & n.3.
13
Each of the fee schedules discloses the “per specimen” fee for “fetal cadaverous
procurement”—in particular, for “2nd trimester D & E (13-24 weeks)” and “1st trimester
aspiration (8-12 weeks).” Di Liberto Decl. Exs. at 15–16 (2013 fee schedules); see also id. at
13–14 (disclosing the same information in the 2014–2015 fee schedules). The fee schedules also
specify pricing for “blood sample procurement,” “special processing/preservation” (such as
“Tissue ‘cleaning’” and “Snap freezing”), “infectious disease screening,” and “delivery.” Id. at
15–16 (2013 fee schedules); see also id. at 13–14 (disclosing the same for 2014–2015). 9 The
information apparent from the fee schedules corresponds with the information that Judicial
Watch seeks and that the Government has redacted.
As an example, Judicial Watch cites a 2013 email in which the Government redacted
line-item prices for the following information: “Procurement fee for acquisition of one 2nd
Trimester Thymus”; “Procurement fee for acquisition of one 2nd Trimester Liver”; “FedEx First
Overnight Delivery”; and “EFT/Wire Transfer Fee.” Di Liberto Decl. Exs. at 28; see also Uhl
Decl. Exs. at 16 (describing this document as an “Email about Procurement fees and attachment
of fees for services schedule”). But each of these line items appear on the 2013 fee schedules
disclosed in the Judiciary Committee’s report. See Di Liberto Decl. Exs. at 15–16 (listing prices
for “2nd trimester D & E (13-24 weeks),” “Federal Express First Overnight,” and “Electronic
Fund Transfer (EFT)”).
9
There are minor differences between the two fee schedules for 2013 (one effective January 1,
2013 and the other effective September 1, 2013) and the 2014 and 2015 fee schedules. For
example, the 2014 and 2015 fee schedules say, “fetal cadaverous specimen procurement” instead
of “fetal cadaverous procurement.” Di Liberto Decl. Exs. at 13–16 (emphasis added). The later
fee schedules also say, “2nd trimester specimen (13-24 weeks)” and “1st trimester specimen (8-
12 weeks),” omitting the “D & E” and “aspiration” notations that had seemingly referred to how
the fetus was aborted. Id. (emphasis added). These differences appear to be stylistic.
14
Or take the redacted 2013 fee schedule that the Government disclosed to Judicial Watch.
The Government redacted fees—including the per-specimen price for “fetal cadaverous
procurement” and the cost for “delivery”—from that document. See id. at 29. But it is nearly
identical to the 2013 fee schedule disclosed in the Judiciary Committee’s report. 10 See id. at 16.
Consider a side-by-side comparison:
Id. at 29 (left); id. at 16 (right).
The same is true for the information withheld in other records pertaining to the 2013–
2015 years. See, e.g., Suppl. Decl. of Meredith Di Liberto (“Suppl. Di Liberto Decl.”) at 3, ECF
10
The Committee report fee schedule omits one line item that is present on the redacted 2013
fee schedule disclosed to Judicial Watch—the pricing for an “Intact Calvarium (8-24 weeks),”
which is “the upper part of the human skull.” Pl.’s Opp’n to Def.’s Mot. to Correct R. at 3, ECF
No. 24. But as Judicial Watch notes, the other line items on these documents are identical. See
id.
15
No. 22-1 (an email in which the Government redacted the 2014 per-specimen fee “for the
procurement of the Thymus and Liver” and the 2015 “procurement fee for 2nd Trimester
samples,” as well as shipping and electronic-funds-transfer costs); Di Liberto Decl. Exs. at 31 (a
2015 “Tissue Acquisition Quote” in which the Government redacted the per-sample procurement
fees for “2nd Trimester Thymus” and “2nd Trimester Liver,” as well as the “FedEx First
Overnight” delivery fee). The unit pricing information for human fetal tissue, as well as
shipping and other costs disclosed in the Judiciary Committee report fee schedules—
corresponding with the 2013–2015 years—is thus in the public domain. The Government cannot
rely on Exemption 4 to withhold it.
b.
As to Judicial Watch’s argument over the 2016–2018 years, in responding to Judicial
Watch’s FOIA request here, NIH released documents disclosing the total cost of transactions
between the Government and ABR. It released “Tissue Acquisition” invoices—from each of the
2016, 2017, and 2018 years—which showed a total price of $680 for one “Thymus, 2nd
Trimester” and one “Liver, 2nd Trimester.” Di Liberto Decl. Exs. at 41 (2016 invoice), 39 (2017
invoice), and 53 (2018 invoice); see also Decl. of Gorka Garcia-Malene Exs. at 2, 5, ECF No.
15-4 (referencing these documents as a “[t]issue acquisition invoice[s] between [ABR] and
NIH”). Judicial Watch asserts that this total—along with other, already disclosed information
detailing that ABR charges the same price for all types of fetal tissue that are the same age—puts
the per-specimen price in the public domain. Pl.’s Opp’n/Cross-Mot. at 13–15; Pl.’s Reply at
13–15.
The Court finds that the redacted 2016–2018 per-specimen pricing information is in the
public domain. The unredacted portions of some disclosures here reveal that ABR based its
16
pricing on the age of the fetus, not the type of tissue. See, e.g., Di Liberto Decl. Exs. at 42 (2016
invoice for “Tissue, 2nd Trimester (1 each of liver and thymus)”); id. at 13–19 (fee schedules
showing that “per specimen” pricing corresponded with whether the fetal tissue was “2nd
trimester” or “1st trimester”); Suppl. Di Liberto Decl. at 3 (referencing the fee “for 2nd Trimester
samples”). So according to ABR’s pricing scheme, a second-trimester liver costs the same as a
second-trimester thymus. And NIH’s disclosures show that the total price for one “Thymus, 2nd
Trimester” and one “Liver, 2nd Trimester” was “$680.00.” Di Liberto Decl. Exs. at 41 (2016
invoice); see also id. at 39 (2017 invoice), 53 (2018 invoice). Knowing that ABR priced the
tissue according to its age, along with the total cost, makes calculating the per-specimen fee an
exercise of simple math. Because both tissues were the same age and thus the same price, the
total price simply has to be divided by the quantity to derive the unit price of $340. See Pl.’s
Reply at 13–15.
As Judicial Watch points out, this must be the per-specimen price that the Government
redacted from the disclosures unless either “ABR was charging amounts different from its fee
schedule or charging individual government agencies different prices.” Id. at 13 n.7. But the
Government has not given the Court any reason to believe that the redacted unit prices are
somehow different. Thus, the per-specimen pricing information for second-trimester human
fetal tissue corresponding with the 2016–2018 years is in the public domain, and the Government
cannot withhold it under Exemption 4.11
11
Judicial Watch is entitled to a narrower set of information for the 2016–2018 years than it is
for the 2013–2015 years. The Court construes Judicial Watch’s cross-motion for summary
judgment as seeking, for the 2013–2015 years, all records related to ABR fees that the Judiciary
Committee report fee schedules rendered publicly available. See Pl.’s Opp’n/Cross-Mot. at 12;
Pl.’s Reply at 11–12. But as to the 2016–2018 years, it seems that Judicial Watch seeks only the
information that stems from the NIH’s disclosure of total cost: the per-specimen price of second-
trimester fetal tissue. See Pl.’s Opp’n/Cross-Mot. at 13–15; Pl.’s Reply at 13–15.
17
2.
a.
The Government argues that the information in the public domain does not exactly match
the information that Judicial Watch seeks so Judicial Watch is not entitled to it. See Def.’s
Opp’n/Reply at 10–12. The Government is correct that there must be a close fit between the
information in the public domain and the redacted information. See, e.g., PETA v. HHS, 901
F.3d 343, 352 (D.C. Cir. 2018) (“[T]he requesting party has the burden of showing that there is a
permanent public record of the exact portions he wishes to obtain.” (cleaned up)); Cottone, 193
F.3d at 555 (explaining that the plaintiff met his burden to prove the tapes he wanted “reside in
the public domain and mirror precisely the information that he has requested”).
But the Government’s argument, as applied to the circumstances here, boils down to a
requirement that redacted information be in identical form to information in the public domain.
See Pl.’s Reply at 10. The public-domain doctrine does not require the Court to favor form over
substance. Binding caselaw shows that the relevant inquiry is whether the information is in the
public domain, not whether it is also in precisely the same form. See, e.g., Cottone, 193 F.3d at
554 (“Under our public-domain doctrine, materials normally immunized from disclosure under
FOIA lose their protective cloak once disclosed and preserved in a permanent public record.”
(emphasis added)); Davis, 968 F.2d at 1280 (stating that the plaintiff “ha[d] not satisfied his
burden to point to specific information in the public domain” (emphasis added)).
In Davis v. DOJ, the D.C. Circuit considered whether the plaintiff was entitled to the
disclosure of tapes played in open court. 968 F.2d at 1278–79. The court held that the plaintiff
“ha[d] not satisfied his burden to point to specific information in the public domain” because he
did not show which tapes in particular were played—only “that some of the tapes were played.”
18
Id. at 1280. To have “obtain[ed] portions of tapes alleged to be in the public domain,” the court
explained, the plaintiff had to show that “there [wa]s a permanent public record of the exact
portions” that he sought. Id.The Circuit distinguished Davis in Cottone v. Reno. In Cottone, like Davis, the plaintiff
sought recordings that were played in open court. Cottone, 193 F.3d at 555–56. But the Circuit
held that the plaintiff in Cottone, unlike the plaintiff in Davis, met his burden of production
because he “demonstrated precisely which recorded conversations were played in open court”;
specifically, he put forward the “official transcript of [his] trial” in which the court reporter
referred to the audio tapes that “had been ‘played for the Court and jury’ and subsequently
admitted into evidence.” Id. at 555. “With such a specific showing,” the court stated, “we are
not left to guess which tapes have entered the public domain and which have not.” Id.The court then dispelled the notion that Davis had “establish[ed] a uniform, inflexible
rule requiring every public-domain claim to be substantiated with a hard copy simulacrum of the
sought-after material.” Id. It acknowledged that “it will very often be the case that some type of
hard copy facsimile will be the only practicable way for a FOIA requester to demonstrate that the
specific information he has solicited has indeed circulated into the public domain.” Id. But the
Circuit went on to say that “it would be an empty formalism to insist that [the plaintiff] produce a
hard-copy, verbatim transcription of the audio tapes to prove which tapes were played at trial
when he has already produced a certified transcript from his trial that indicates precisely which
tapes were, in fact, played.” Id.The lesson of these cases is that courts should scrutinize whether the plaintiff has proven
that the information sought is in the public domain. They do not require a plaintiff to produce an
exact copy of the redacted information, in the same form, to meet that burden of production.
19
This principle is further illustrated by Center for Public Integrity v. U.S. Department of
Energy, 287 F. Supp. 3d 50 (D.D.C. 2018). There, the court considered redacted portions of
emails that the Government had disclosed before in a memorandum and report. See id. at 63.
The court examined the memorandum and report, which had “reveal[ed]” and “describe[d] the
[email] exchange” (apparently even quoting portions of it). Id. at 63–64. The court also
“conduct[ed] an in camera review of the records in dispute” to conclude that certain “statements
contained in the . . . e-mail chain are specific enough, and sufficiently match,” the memorandum
and report so that they “must be disclosed.” Id. at 64; see also id. at 64–65 (concluding the same
about a different email chain). Thus, the prior disclosure of the information in the email chain
was enough to put at least portions of the emails in the public domain, even though the prior
disclosures took a different form—a memorandum and report.
So too here. Judicial Watch has met its burden to show that the unit pricing information
it seeks is in the public domain through the fee schedules appended to the Judiciary Committee
report and the Government’s disclosures regarding ABR’s pricing. Even though these materials
might have disclosed unit pricing in a different form, that does not mean that the information is
not in the public domain. In fact, Judicial Watch’s showing here seems more akin to the “hard
copy facsimile” (that the D.C. Circuit said was sufficient but not required in Cottone) than the
transcript (that the Circuit held was enough). Cottone, 193 F.3d at 555.
This case is therefore unlike Davis in two critical ways. First, Judicial Watch has made a
“specific showing” of the unit pricing information that is in the public domain so that the Court
is “not left to guess which [unit pricing information] ha[s] entered the public domain and which
ha[s] not.” Id. For each of the relevant years, Judicial Watch has shown the manner in which the
unit pricing information was disclosed. For 2013–2015, the fee schedules show the unit pricing
20
for fetal tissue and other services. And for 2016–2018, the Government’s disclosures, including
those revealing total cost, have put the per-specimen pricing information for second-trimester
fetuses in the public domain.
Second, while the plaintiff in Davis sought to obtain all tapes played by showing that only
“some of the tapes were played,” Davis, 968 F.2d at 1280, Judicial Watch is not seeking
information in excess of what it has shown is in the public domain. Contrast this case to PETA v.
HHS. There, the D.C. Circuit held that there was “a material difference between inventory
snapshots posted periodically as part of inspection reports by the [agency]” (which were already
public) and “the number of nonhuman primates obtained in various shipments” (which the
plaintiff sought). PETA, 901 F.3d at 352. The court explained that the publicly disclosed
inventory snapshots did not reveal as much detail as the redacted shipment-by-shipment quantity
information, which was “a far more accurate measure of business volume.” Id. Here, though,
Judicial Watch seeks the same unit pricing that is in the Judiciary Committee report and the per-
specimen fees that can be easily discerned from the Government’s disclosure of the other two
critical variables (total price and quantity). It seeks no more than what is publicly available.
b.
The Government more broadly contends that Judicial Watch has not met its burden to
prove that the records it seeks lie in the public domain. See Def.’s Opp’n/Reply at 11. The
Government is correct that the burden rests with Judicial Watch to show the public-domain
doctrine applies. See Story of Stuff, 366 F. Supp. 3d at 75. But the Court finds Judicial Watch
has met that burden and that the Government has failed to rebut Judicial Watch’s showing.
The Government attempts to analogize this case to Story of Stuff, but a close comparison
reveals why the Government comes up short here. In Story of Stuff, the plaintiff argued that a
21
report already in the public domain “contain[ed] substantially equivalent—if not identical—
information about [the company’s] operations.” Id. (cleaned up). “To counter these claims, the
Government submitted a declaration from” the company explaining why the information in the
company’s confidential materials was different from that in the public report. Id. For example,
the declaration explained that since the public report’s issuance, “a large forest fire [had]
completely destroyed [the company’s] infrastructure”; thus, the company’s confidential materials
would “contain information that is substantively and contextually different from that contained in
the [public] report.” Id. (cleaned up). It also noted that “the level of detail contained in the
[public report] [wa]s conceptual,” but “[b]y contrast, the company’s confidential materials
[were] far more precise.” Id. (cleaned up). This Court found it “plausible that [the company]
ha[d] confidential diagrams of its operations featuring greater precision and accuracy than those”
in the public report and ultimately determined that the plaintiff “ha[d] failed to carry its burden
of showing that there is a permanent public record of the information it seeks.” Id. at 76 (cleaned
up).
Here, unlike in Story of Stuff, the Government has submitted nothing to convince the
Court that the withheld information is any different from the information in the public domain.
Had the Government given reason to believe that the redacted information does not match the
information already in the public domain—for example, that ABR’s prices fluctuated or that it
gave discounts for bulk orders—as it did with the declaration in Story of Stuff, the outcome here
may have been different. But it has not. Judicial Watch has met its burden, and the Government
has not rebutted its showing.
* * *
22
In sum, the Court determines that the Government has not met its burden to prove that
Exemption 4 applies to shield the names and addresses of ABR’s contract laboratories. The
Government must therefore disclose this information. The Court also concludes that Judicial
Watch has met its burden to show that the unit pricing information it seeks is in the public
domain. The Government has not meaningfully responded to this showing or convinced the
Court that the redacted information is any different than information in the public domain. It
must therefore disclose: (1) any redacted unit pricing information for fetal tissue, shipping, or
other fees and services relating to the 2013–2015 years that can be found in the Judiciary
Committee report’s fee schedules; and (2) any redacted per-specimen pricing information for
second-trimester fetal tissue relating to the 2016–2018 years.
Happily for the Government (and ABR), this means that the Court need not reach Judicial
Watch’s argument that the Government cannot withhold the information at issue because ABR
engaged in criminal conduct. See Pl.’s Opp’n/Cross-Mot. at 15–17. Recall that it is illegal to
transfer “any human fetal tissue for valuable consideration.” 42 U.S.C. § 289g-2(a). Judicial
Watch contends that the invoices disclosed here show that the Government paid “valuable
consideration” to ABR and so the Government cannot keep the withheld information
confidential. Pl.’s Opp’n/Cross-Mot. at 15.
“Exemption 4 cannot be used to shield illegal business practices under the guise of
confidential business information.” Ctr. for Pub. Integrity v. U.S. Dep’t of Energy, 234 F. Supp.
3d 65, 76 (D.D.C. 2017). The Court is dubious of the Government’s argument that this
exception could not apply here. See Def.’s Opp’n/Reply at 13. There is reason to question the
lawfulness of the transactions between the Government and ABR. See, e.g., PSMF ⁋ 31; Di
Liberto Decl. Exs. at 5 (press release explaining that the Government terminated its contract with
23
ABR because “HHS was not sufficiently assured that the contract included the appropriate
protections applicable to fetal tissue research or met all other procurement requirements”). But
because the Court will grant Judicial Watch the relief it seeks on other grounds, it is unnecessary
to proceed to discovery or trial on this issue.
IV.
For all these reasons, the Defendant’s Motion for Summary Judgment will be denied, 12
and the Plaintiff’s Cross-Motion for Summary Judgment will be granted. A separate Order will
issue.
2021.03.11
15:38:13 -05'00'
Dated: March 11, 2021 TREVOR N. McFADDEN, U.S.D.J.
12
The Court will also deny the Government’s “Motion to Correct the Record.” Def.’s Mot. to
Correct R., ECF No. 23. The Court construes this filing as a motion for leave to file a sur-reply,
as the Government appears to be responding to arguments raised in Judicial Watch’s reply. See
id. at 1. As best the Court can tell, the Government simply puts two documents—which are
already in the record—side by side to show that they are not identical and thus that the records
Judicial Watch seeks are not in the public domain. See id. The Government’s request to “correct
the record,” then, is both unnecessary and inappropriate. And the Court has already rejected the
Government’s form-over-substance argument. See supra Section III.B.2.a. Even were the Court
to grant the Government’s motion, the outcome here would not change.
24