Informed Consent Action Network v. Health Resources and Services Administration

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

INFORMED CONSENT ACTION NETWORK,

Plaintiff, Case No. 24-cv-549 (JMC)

v.

HEALTH RESOURCES & SERVICES

ADMINISTRATION, et al.,

Defendants.

MEMORANDUM OPINION

An office within the Department of Health and Human Services is responsible for

compensating individuals who are harmed by certain countermeasures deployed in response to

public health emergencies—like, for instance, COVID-19 vaccines. An organization filed a

Freedom of Information Act (FOIA) request seeking the names of every employee in that office.

The Government released the names of the Director and Deputy Director but withheld the names

of the 35 employees that worked underneath them. Because employees in the office have received

harassing and threatening emails, voicemails, and text messages, the Government concluded that

disclosure of the names “would constitute a clearly unwarranted invasion of” the employees’

“personal privacy.” 5 U.S.C. § 552(b)(6). It therefore applied FOIA’s Exemption 6 to redact the

names. The Government has adequately justified that decision, so the Court grants its motion for

summary judgment and denies the organization’s cross-motion. 1

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Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by

omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to

documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the

top of each page.

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I. BACKGROUND

Under the Public Readiness and Emergency Preparedness Act, the Secretary of Health and

Human Services can, in response to a “public health emergency,” issue a declaration that affords

providers of “covered countermeasures”—medical interventions meant to counter the

emergency—immunity from lawsuits related to the use of those countermeasures. 42 U.S.C.

§ 247d-6d(a), (b), (i)(1), (i)(2). Because the Secretary’s declaration “cuts off forms of relief that

might otherwise have been available to people harmed by” countermeasures, Congress “also

established a ‘Covered Countermeasure Process Fund’ to compensate for such harms.” Cannon v.

Watermark Ret. Cmtys., Inc., 45 F.4th 137, 139 (D.C. Cir. 2022); see 42 U.S.C. § 247d-6e(a).

In response to the COVID-19 pandemic, the Secretary issued a declaration under the Act.

See ECF 16-4 ¶ 7. COVID-19 vaccines were among the countermeasures covered by the

declaration, meaning that people claiming to have suffered “injuries directly caused by” the

vaccines would need to submit claims for compensation from the fund. 42 U.S.C. § 247d-6e(a);

see ECF 16-4 ¶ 7. Those claims would be adjudicated by the Countermeasures Injury

Compensation Program, a component within the Department of Health and Human Services that

has been tasked with running the fund. See ECF 16-4 ¶¶ 4, 6; ECF 21-2 ¶ 4.

Seeking information about that Program, Informed Consent Action Network submitted a

Freedom of Information Act request to a Department of Health and Human Services’ component

in late 2023. See ECF 1-1 at 2 (request); ECF 18-3 at 1 (undisputed fact). Informed Consent asked

for “[a]ll records sufficient to identify all agency personnel involved with the Countermeasures

Injury Compensation Program.” ECF 1-1 at 2. Two weeks later, the agency sent its “final response”

to Informed Consent. ECF 1-3 at 2. The agency produced a single responsive record. See id.;

ECF 18-3 at 2. That record was a 37-item numbered list. See ECF 16-5 at 2. The first two items

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were the names of the Director and Deputy Director of the Program. See id.; ECF 16-3 ¶ 19. The

remaining 35 items were the redacted “names of the thirty-five Program personnel below the

Deputy Director level.” ECF 16-3 ¶ 17.

The agency withheld those 35 names under FOIA’s Exemption 6. See ECF 16-3 ¶ 14. That

exemption applies to “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 the

agency saw it, there was a “clear threat of harassment, invasions of personal privacy, and potential

harm for employees who are associated with the Program.” ECF 16-3 ¶ 24. On the other hand, the

agency reasoned, “the release of the names would not shed any significant light on how the

Program is run.” Id. The agency therefore concluded that Exemption 6 applies to the redacted

names. See id.

After filing an administrative appeal, Informed Consent came to this Court. See ECF 1-5;

ECF 1. In a two-count complaint, the organization challenged the agency’s alleged failure to timely

act on the administrative appeal and its conclusion that the redacted 35 names are covered by

Exemption 6. See ECF 1 ¶¶ 13–20. Eventually, both sides filed competing motions for summary

judgment. See ECF 14; ECF 18. The only issue presented by the motions is whether the agency

has justified its withholding of the names under Exemption 6. See ECF 16-1 at 8; ECF 18-1 at 10.

II. LEGAL STANDARD

“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.

Off. of U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). An “agency withholding

responsive documents from a FOIA release bears the burden of proving the applicability of

claimed exemptions.” ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). “Summary

judgment is warranted on the basis of agency affidavits when the affidavits describe the

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justifications for nondisclosure with reasonably specific detail, demonstrate that the information

withheld logically falls within the claimed exemption, and are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith.” Larson v. Dep’t of State, 565 F.3d

857, 862 (D.C. Cir. 2009).

III. ANALYSIS

To determine whether the Government has justified withholding the names under

Exemption 6, the Court’s analysis proceeds in three steps. First, the Court “determine[s] whether

the records are personnel, medical, or similar files covered by Exemption 6.” Am. Immigr. Laws.

Ass’n v. Exec. Off. for Immigr. Rev. (AILA), 830 F.3d 667, 673 (D.C. Cir. 2016). If yes, the Court

next asks whether disclosure “would compromise a substantial, as opposed to a de minimis, privacy

interest.” Id. at 674. If the answer to that question is yes too, the final step is to “weigh the privacy

interest at stake against the public interest in the release of the records.” Id. After walking through

each step here, the Court concludes that the Government has adequately demonstrated that “the

invasion of privacy is clearly unwarranted.” Hum. Rts. Def. Ctr. v. U.S. Park Police, 126 F.4th

708, 713 (D.C. Cir. 2025). The Government is therefore entitled to summary judgment.

A. The redacted names are “similar files” covered by Exemption 6.

Exemption 6 applies to “personnel and medical files and similar files.” 5 U.S.C.

§ 552(b)(6). “‘[S]imilar files’ . . . include detailed Government records on an individual which can

be identified as applying to that individual.” Hum. Rts. Def. Ctr., 126 F.4th at 713. The exemption

applies not only to “entire files” but also “may call for redaction of bits of personal information,

such as names and addresses, the release of which would create a palpable threat to privacy.” Id.

Applying this understanding of ‘similar files,’ the Circuit has squarely held that names—like those

redacted here—are “bits of personal information” that “fall within the scope of exemption 6.”

Prison Legal News v. Samuels, 787 F.3d 1142, 1147 n.6 (D.C. Cir. 2015); see also Jud. Watch,

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Inc. v. FDA, 449 F.3d 141, 152 (D.C. Cir. 2006) (holding “names of agency personnel” are covered

by Exemption 6).

Informed Consent protests that these names are not “similar files” and therefore not

“subject to Exemption 6.” ECF 18-1 at 14–15. In doing so, it conflates the later, “balanc[ing]”

stage of the inquiry with the first stage of “determin[ing] whether the records are personnel,

medical, or similar files covered by Exemption 6.” AILA, 830 F.3d at 673. Informed Consent is

right that Exemption 6 “does not categorically exempt the names of government employees.”

ECF 18-1 at 14. But that is not because those names are not “similar files.” It is because “the

privacy interest at stake may vary depending on the context in which it is asserted.” Jud. Watch,

Inc., 449 F.3d at 153. The privacy interest is relevant to the second and third steps of the inquiry—

determining whether “a substantial, as opposed to a de minimis, privacy interest” is at stake and

“balanc[ing]” that interest “against the public interest in the release of the records.” AILA, 830 F.3d

at 673–74; see, e.g., Hum. Rts. Def. Ctr., 126 F.4th at 715 (names not properly withheld because

agency failed to demonstrate “that disclosure . . . would compromise a substantial privacy

interest”). And although Informed Consent has cited two district court decisions holding that

names are not “similar files,” ECF 18-1 at 16, that approach is irreconcilable with the D.C.

Circuit’s decisions holding names are “similar files” covered by Exemption 6. See Calderon v.

U.S. Dep’t of Agric., 236 F. Supp. 3d 96, 119–20 (D.D.C. 2017) (holding that one of the district

court decisions cited by Informed Consent is contrary to “Supreme Court and D.C. Circuit

precedent”), abrogated on other grounds by Food Mktg. Inst. v. Argus Leader Media, 588 U.S.

427 (2019). The redacted names therefore qualify as “similar files” that fall within the scope of

Exemption 6.

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B. A substantial privacy interest is at stake.

The next question is whether “disclosure would compromise a substantial” privacy interest.

AILA, 830 F.3d at 674. “[T]he word substantial in this context means less than it might seem.”

Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1229 (D.C. Cir. 2008), superseded on

other grounds by statute, 7 U.S.C. § 8791(b)(2), as recognized in Telematch, Inc. v. U.S. Dep’t of

Agric., 45 F.4th 343, 352 (D.C. Cir. 2022). “A substantial privacy interest is anything greater than

a de minimis privacy interest.” Id. at 1229–30. That said, it is not “categorically” true that

disclosure of federal employees’ names would compromise more than a “de minimis” interest.

Hum. Rts. Def. Ctr., 126 F.4th at 715. And “showing that a substantial invasion of privacy will

occur if the . . . names are released requires reasonable specificity of detail” in the Government’s

evidentiary showing, “rather than merely conclusory statements.” Id.

The Government has comfortably made that showing here. The compensation Program’s

Director submitted a declaration detailing examples of “harassing” emails and voicemails that staff

have received in the last several years. ECF 16-4 ¶¶ 11–12; ECF 21-2 ¶ 7. The Director, for

instance, received emails comparing him to Hitler, calling him a “coward” and warning him that

“God is watching,” and referring to “explicit sexual acts.” ECF 16-4 ¶ 14. He also explained that

his wife has received “similar harassing messages on her personal cell phone” regarding his

“professional role.” Id. ¶ 15. He received messages on his personal cell phone, as well. See id.

¶ 13; ECF 21-2 ¶ 8. Other staff members have also been harassed. One “received an email with

‘Hahahaha’ in the subject line and an attached picture” of that staff member “and their spouse

together at a private function.” ECF 16-4 ¶ 18. Another staff member was sent “a screenshot of an

article written about a school shooting” at a school that staff member had attended. Id. ¶ 20.

Because of concerns about these communications, the agency notified Federal Protective Services

about the “threats and harassment against” the Program’s staff. Id. ¶ 21. “[O]n at least two

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occasions, law enforcement officials arranged visits to” an individual who had submitted a claim

for compensation with the Program “to ensure that the harassment and threatening nature of the[]

communications ceased.” Id. ¶ 23. This “detailed evidence” establishes that release of the names

“raises threats more palpable than mere possibilities.” Hum. Rts. Def. Ctr., 126 F.4th at 716.

Indeed, the evidentiary showing here is in some ways even stronger than that in other cases

where the Circuit has held withholding of names was justified. In Judicial Watch v. FDA, for

instance, the agency put forward evidence about “a particularized danger to similarly situated

people,” but not “toward [the] staff” whose names were withheld “specifically,” and the Circuit

“held that Exemption 6” nonetheless “justified withholding the names.” Hum. Rts. Def. Ctr.,

126 F.4th at 716 (describing Jud. Watch, Inc., 449 F.3d at 153). Here, by contrast, the Government

put forward evidence about threats and harassment directed towards the very employees whose

names the agency withheld. See ECF 16-4 ¶¶ 16–20. The Government has therefore established

that disclosure of the employees’ names would compromise a substantial privacy interest.

Resisting that conclusion, Informed Consent protests that the Government’s declarations

are not “evidence that can properly be considered on a motion for summary judgment.” ECF 18-1

at 17. The organization’s arguments here run the gamut, including the declarants’ supposed lack

of personal knowledge, their failure to provide certain dates in their declarations, and their lack of

specificity about the organization of the Program’s office and the nature of the harassing

communications. See id. at 17–23. These arguments are misplaced. The declarant who described

the harassing and threatening messages largely did so on the basis of his personal knowledge: He

received many of those communications. See ECF 16-4 ¶¶ 13–14. And to the extent he is

describing messages other Program staff members received and then told him about, he did not

“run[] afoul of Rule 56” by “relay[ing]” information he received from his “subordinates.” DiBacco

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v. Dep’t of the Army, 926 F.3d 827, 833 (D.C. Cir. 2019). As for the alleged failure to provide

dates, the same declarant included dates in his initial declaration, and both declarants further

clarified the dates in supplemental declarations to resolve any would-be confusion. See ECF 16-4

at 11–31 (dates shown on emails attached to declaration); ECF 21-2 ¶¶ 7–8; ECF 21-3 ¶¶ 4–13.

And as the Court’s discussion of the privacy interest at stake makes clear, there is ample

detail in the Director’s declaration about the nature of the harassment and threats. That declaration

went well beyond “[g]eneralities” and “wholly conclusory” “assertions” “merely recit[ing] the

elements of the analysis for whether Exemption 6 applies.” Hum. Rts. Def. Ctr., 126 F.4th at 715.

Instead, it included examples of specific messages to “substantiat[e]” the Government’s claims,

along with descriptions of the incidents giving rise to the privacy concerns. Id.; compare, e.g., ECF

16-4 ¶¶ 11, 13–14, 18, 20 (describing several instances of harassment), with Inst. for Energy Rsch.

v. FERC, No. 22-cv-2114, 2023 WL 6121878, at *14–15 (D.D.C. Sept. 19, 2023) (holding that

agency’s “bald citation to several recent examples” involving officials in “an entirely different

branch of government” was insufficient to establish privacy interest in withholding names of staff

under Exemption 6). Aside from its failed objection to the admissibility of the Government’s

declaration, Informed Consent offers no reason to doubt that the Program’s staff members received

these harassing messages. The Government has therefore demonstrated that “a substantial invasion

of privacy will occur if the [names] are released.” Hum. Rts. Def. Ctr., 126 F.4th at 713.

C. Disclosure of the names would constitute a clearly unwarranted invasion of the

employees’ personal privacy interest.

Because the Government “has shown that a privacy interest is substantial,” the Court turns

to “balanc[ing] the [employees’] right of privacy against the public interest in disclosure.” Hum.

Rts. Def. Ctr., 126 F.4th at 713. “Unless the invasion of privacy is clearly unwarranted, the public

interest in disclosure must prevail.” Id.

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At the threshold, the Court clarifies the relevant public interest. Informed Consent spends

quite a bit of its time discussing the agency’s approval, or lack thereof, of “claims related to

COVID-19 countermeasures,” ECF 18-1 at 25, the claims approval process, see id. at 26, and the

agency’s expenditure of “taxpayer money,” id. at 33. “The balancing inquiry,” however, “focuses

not on the general public interest in the subject matter of the FOIA request, but rather on the

incremental value of the specific information being withheld.” Hum. Rts. Def. Ctr., 126 F.4th at

713. Here, that means the relevant consideration is the public’s interest in knowing the names of

each of the Program’s employees. But “[d]isclosing the identities” of the employees would “have

minimal incremental value in shedding light on” how the Program is adjudicating claims for

COVID-19 related injuries or spending taxpayer money. Jud. Watch, Inc. v. U.S. Dep’t of Health

& Hum. Servs., No. 22-cv-3051, 2024 WL 3924563, at *3 (D.D.C. Aug. 23, 2024).

Informed Consent has identified a more specific public interest that is, at least theoretically,

tethered to disclosure of the names. The organization claims that disclosure would “inform the

public about whether the employees are qualified or whether they have conflicts of interest.”

ECF 18-1 at 40. Those are, no doubt, subjects about which there is a legitimate and weighty public

interest. See Wash. Post Co. v. U.S. Dep’t of Health & Hum. Servs., 690 F.2d 252, 264 (D.C. Cir.

1982) (discussing public’s “strong interest” in “disclosure” of certain government consultants’

“conflicts of interest”). But for two reasons, that interest is significantly weakened here.

First, Informed Consent “offers nothing but speculation”—alluding to the Department of

Health and Human Service’s collaboration with COVID-19 vaccine manufacturers, see ECF 18-1

at 33—“to suggest” that any of the employees are conflicted or unqualified. Perioperative Servs.

& Logistics, LLC v. U.S. Dep’t of Veterans Affs., 57 F.4th 1061, 1068 (D.C. Cir. 2023). “Mere

speculation about hypothetical public benefits” of disclosure “cannot outweigh a demonstrably

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significant invasion of privacy,” as is threatened here. U.S. Dep’t of State v. Ray, 502 U.S. 164,

179 (1991); see also Perioperative Servs. & Logistics, LLC, 57 F.4th at 1068 (discounting public

interest where it rests on “nothing but speculation”); Jud. Watch, Inc., 2024 WL 3924563, at *4

(same). Even taking at face value Informed Consent’s speculation about the Department’s

relationship with vaccine manufacturers, nothing about that relationship suggests anything at all

about the specific employees whose identities the organization wants to disclose. Because there is

no reason to think the employees have a conflict of interest or are unqualified, the public interest

in disclosure for those purposes is weak at best.

Second, the “relevant question” is the “incremental value” of disclosure of the names to

the asserted public interest. Insider Inc. v. Gen. Servs. Admin., 92 F.4th 1131, 1137 (D.C. Cir.

2024). That incremental value is lessened here given the universe of other information from which

the public could assess whether the Program’s administration is being affected by conflicts or

unqualified employees. For one, the agency disclosed the names of the Director and the Deputy

Director. The Director “review[s] each claim” and makes the ultimate determination of “whether

a [claimant] has met the requirements to establish eligibility for compensation” and, if so, “the

type and amount of compensation awarded.” ECF 21-2 ¶ 5. 2 The public therefore can already

decide for itself if the person with ultimate responsibility for the Program is conflicted or

2

Informed Consent claims that there is a dispute about whether the Director does, in fact, make this ultimate

determination. See ECF 18-3 at 4. But the Director twice averred, under penalty of perjury, that he was the “only”

person in the office with “authority to make eligibility determinations.” ECF 16-4 ¶ 10; ECF 21-2 ¶¶ 4–5. His

affidavits are “accorded a presumption of good faith, which cannot be rebutted by purely speculative claims.”

SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Informed Consent, however, has done nothing

more than baldly assert that “without discovery” it cannot “substantiate this claim.” ECF 18-3 at 4. “[D]iscovery is

rare in FOIA cases,” and Informed Consent has not offered any evidence—an “affidavit or declaration,” for instance—

to suggest that the Director’s declaration was filed in bad faith or to otherwise explain why it “cannot present facts

essential to justify its opposition” to the Government’s motion for summary judgment. Cole v. Rochford, 285 F. Supp.

3d 73, 76–78 (D.D.C. 2018); Fed. R. Civ. P. 56(d). There is, therefore, no genuine dispute about the Director’s ultimate

responsibility for approving claims.

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unqualified. The public also might be able to assess the qualifications and conflicts of the lower-

level staff without knowing their names. Reviewing their resumes, for instance, might reveal that

same information. And as it happens, another FOIA requester has already sought those resumes.

ECF 21-3 ¶ 13. 3 This other information—some of which, the Director and Deputy Director’s

names, is already public—sheds light on the same concerns the public would have in the

employees’ names. The incremental value of releasing the employees’ names is therefore lessened.

Because the public interest in disclosure of the withheld employees’ names is weak, at best,

the employees’ “private interest in avoiding harassment or violence tilts the scales.” Jud. Watch,

Inc., 449 F.3d at 153. The Government has therefore justified redacting those names under

Exemption 6. And for the same reason that the Government has demonstrated the employees’

substantial privacy interest in withholding the names, it has likewise “established that disclosure

of the employees’ identities would result in a reasonably foreseeable harm to the privacy interests

protected by Exemption 6.” Jud. Watch, Inc., 2024 WL 3924563, at *4. The “very context and

purpose of the withheld material”—protecting the weighty privacy interest at stake—“makes the

foreseeability of harm manifest.” Id.; see also Hum. Rts. Def. Ctr., 126 F.4th at 716–17 (describing

the “substantive[] overlap” between the Exemption 6 privacy interest analysis and the

“foreseeable-harm rule” for purposes of Exemption 6).

Two final notes before closing. First, because the harassment concern is equally applicable

to each of the 35 staff members in the office, the “balancing analysis under Exemption 6 would

yield a uniform answer across the entire” office. AILA, 830 F.3d at 675. There was therefore no

need for the Government to make a “particularized showing for defined subgroups of [employees]

or for individual” employees. Id. at 676. Second, the Court has an “obligation to consider the

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In acknowledging that request, the Court does not remark in any way on its propriety.

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segregability issue sua sponte.” Rudometkin v. United States, 140 F.4th 480, 495 (D.C. Cir. 2025).

The Court is satisfied that the agency produced all reasonably segregable information. The only

information redacted were the names themselves and, as the Government explained, production of

any of that exempt information would have led to “reasonably foreseeable” harm. ECF 16-3 ¶ 31.

* * *

The Government’s motion for summary judgment, ECF 14, is GRANTED, and Informed

Consent’s motion for summary judgment, ECF 18, is DENIED. A separate order accompanies

this memorandum opinion.

SO ORDERED.

__________________________

JIA M. COBB

United States District Judge

Date: March 30, 2026

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