People for the Ethical Treatment v. National Institutes of Health

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2013 Decided March 14, 2014

No. 12-5183

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS,

APPELLANT

v.

NATIONAL INSTITUTES OF HEALTH, DEPARTMENT OF HEALTH

AND HUMAN SERVICES,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-01818)

Eric R. Glitzenstein argued the cause for appellant. With

him on the briefs were Katherine Anne Meyer and Jessica Almy.

Marina Utgoff Braswell, Assistant U.S. Attorney, argued

the cause for appellee. With her on the brief were Ronald C.

Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant

U.S. Attorney.

Before: HENDERSON, GRIFFITH and SRINIVASAN, Circuit

Judges.

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SRINIVASAN, Circuit Judge: This case involves two

Freedom of Information Act (FOIA) requests submitted by

People for the Ethical Treatment of Animals (PETA) to the

National Institutes of Health (NIH). PETA requested records

concerning NIH investigations of animal abuse at a university

research lab, and specifically sought documents related to any

investigations into complaints filed against three identified

researchers. NIH issued Glomar responses, meaning that the

agency refused to confirm or deny the existence of responsive

documents on the ground that acknowledging their existence

would itself undercut privacy interests protected by FOIA.

PETA challenged NIH’s Glomar responses in district court.

The district court determined that any NIH acknowledgment of

the existence of responsive records would reveal that the agency

had investigated the three researchers. The court therefore

upheld NIH’s Glomar responses under FOIA Exemption 7(C),

which permits withholding law enforcement information or

records if disclosure could entail an unwarranted invasion of

personal privacy.

We affirm the validity of NIH’s Glomar responses as to

any documents that would reveal whether NIH had investigated

the three researchers. But we understand PETA’s request to

encompass additional types of documents that, insofar as they

may exist, would not disclose any investigations of the three

researchers. We therefore vacate in part the district court’s grant

of summary judgment to NIH.

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I.

A.

NIH, an agency within the Department of Health and

Human Services, provides federal funding for medical research,

including research involving animals. NIH grant recipients

must adhere to certain policies concerning the humane treatment

of laboratory animals. The NIH Office of Laboratory Animal

Welfare (OLAW) investigates allegations that grant recipients

have violated NIH policies. Universities receiving NIH funding

must establish an Institutional Animal Care and Use Committee,

which bears responsibility for monitoring compliance with NIH

guidelines and reporting any violations to OLAW.

PETA is a non-profit organization that advocates for

animal rights. Among its activities, PETA investigates the

abuse of animals in research laboratories. This case concerns

PETA’s efforts to investigate the treatment of laboratory

animals at the Scott-Ritchey Research Center at Auburn

University, a state university in Alabama that receives NIH

funding for animal research.

PETA reports that, in early 2005, it placed an undercover

investigator in one of Auburn’s research laboratories. Over an

eight-month period, the investigator allegedly documented

numerous violations of the Animal Welfare Act as well as the

misappropriation of NIH funds. On the basis of that

information, PETA assembled a written complaint. The

complaint names researchers who also are the subjects of

PETA’s FOIA requests at issue here.

PETA states that it sent its complaint to NIH, but it is

unclear from the record whether the agency received it. PETA

also filed its complaint with the United States Department of

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Agriculture (USDA). In response to a subsequent FOIA

request, USDA released the complaint in largely unredacted

form. USDA also released an investigatory report that had

concluded that the complaint was “partially valid.”

B.

PETA filed three requests under FOIA with NIH seeking

records related to Auburn University. First, on February 28,

2006, PETA filed a request “for copies of all OLAW files

concerning Auburn University.” NIH identified several

hundred pages of responsive documents, but withheld or

redacted most of them. PETA’s first FOIA request is not at

issue in this appeal.

On July 25, 2007, PETA filed a second FOIA request with

NIH, framed as follows:

Pursuant to the federal Freedom of Information

Act, 5 U.S.C. § 552, People for the Ethical

Treatment of Animals (PETA) requests copies of

all official investigative reports, preliminary

notes, testimonies, memos, meeting minutes,

phone conversations, emails and other materials

related to all National Institutes of Health (NIH)

investigations into complaints filed in 2005-

present regarding [three specifically named NIH

grant recipients] at Auburn University’s Scott-

Ritchey Research Center in Auburn, AL.

NIH issued a Glomar response, refusing to confirm or deny the

existence of any responsive documents. NIH stated that any

such records would be exempt from disclosure under FOIA

Exemption 6, 5 U.S.C. § 552(b)(6), which protects against

clearly unwarranted invasions of personal privacy.

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On May 20, 2008, PETA sought certain documents from

Auburn University pursuant to Alabama’s Open Records Act.

In response, Auburn’s general counsel informed PETA that

PETA’s activities had “resulted in an investigation by NIH.”

The general counsel explained, however, that the university was

unable to disclose any further information because the

investigation was ongoing and the university had entered into a

confidentiality agreement with NIH.

On August 21, 2008, PETA sent a third FOIA request to

NIH, this time seeking “[c]opies of any signed confidentiality

agreement between Auburn University and NIH relating to

materials and information with regard to an investigation into

the research of [a specifically named NIH grant recipient] and

colleagues.” The request named one of the same researchers

who had been named in PETA’s second request. NIH issued

another Glomar response, again invoking FOIA Exemption 6.

PETA filed an administrative appeal concerning its second and

third requests. The Department of Health and Human Services,

NIH’s parent organization, issued a final decision affirming the

agency’s Glomar responses under Exemptions 6 and 7(C).

PETA then initiated the present action in the district court

challenging NIH’s Glomar responses to the second and third

requests. The district court granted summary judgment to NIH.

The court upheld the responses under FOIA Exemption 7(C), 5

U.S.C. § 552(b)(7)(C), which exempts from disclosure law

enforcement records and information whose release could

constitute an unwarranted invasion of personal privacy. PETA

v. NIH, 853 F. Supp. 2d 146, 154-59 (D.D.C. 2012). The court

determined that acknowledging the existence of documents

responding to PETA’s requests would confirm that NIH had

investigated the three named researchers. Id. at 155. Such a

confirmation, the court reasoned, would “go[] to the heart of the

privacy interest that Exemption 7(C) was designed to protect.”

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Id. Concluding that any public interest in disclosure failed to

outweigh the privacy interests at stake, the district court upheld

NIH’s Glomar responses. Id. at 159. PETA now appeals,

challenging the validity of NIH’s Glomar responses to the

second and third requests.

II.

The Freedom of Information Act “implement[s] a general

philosophy of full agency disclosure.” U.S. Dep’t of Justice v.

Reporters Comm. for Freedom of the Press, 489 U.S. 749, 754

(1989) (internal quotation marks omitted). The statute “requires

every federal agency, upon request, to make ‘promptly available

to any person’ any ‘records’ so long as the request ‘reasonably

describes such records.’” Assassination Archives & Research

Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) (quoting 5 U.S.C.

§ 552(a)(3)). Agencies have “a duty to construe a FOIA request

liberally.” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885,

890 (D.C. Cir. 1995). An agency can withhold or redact

documents only if the information falls within one of nine

statutory exemptions. See 5 U.S.C. § 552(b)(1)-(9). The agency

bears the burden of establishing that an exemption applies.

Reporters Comm., 489 U.S. at 755. An agency ordinarily must

search for any documents responsive to the request, and must

“disclose all reasonably segregable, nonexempt portions of the

requested record(s).” Assassination Archives, 334 F.3d at 58

(citing 5 U.S.C. § 552(b)).

In certain cases, merely acknowledging the existence of

responsive records would itself “cause harm cognizable under

[a] FOIA exception.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir.

2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir.

1982)) (internal quotation mark omitted). In that event, an

agency can issue a Glomar response, refusing to confirm or deny

its possession of responsive documents. The Glomar response

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takes its name from the CIA’s refusal to confirm or deny the

existence of records about “the Hughes Glomar Explorer, a ship

used in a classified [CIA] project ‘to raise a sunken Soviet

submarine from the floor of the Pacific Ocean to recover the

missiles, codes, and communications equipment onboard for

analysis by United States military and intelligence experts.’”

Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1171 (D.C. Cir.

2011) (quoting Phillippi v. CIA, 655 F.2d 1325, 1327 (D.C. Cir.

1981)). A Glomar response is valid “if the fact of the existence

or nonexistence of agency records falls within a FOIA

exemption.” Wolf, 473 F.3d at 374.

Courts can grant summary judgment upholding a Glomar

response based on agency affidavits explaining the basis for the

response. Affidavits must contain “reasonable specificity of

detail rather than merely conclusory statements” and cannot be

“called into question by contradictory evidence in the record.”

Elec. Privacy Info. Ctr. v. Nat’l Sec. Agency, 678 F.3d 926, 931

(D.C. Cir. 2012) (internal quotation marks omitted). Contrary

to PETA’s assertions, to the extent the circumstances justify a

Glomar response, the agency need not conduct any search for

responsive documents or perform any analysis to identify

segregable portions of such documents. See Wolf, 473 F.3d at

374 n.4; Elec. Privacy Info. Ctr., 678 F.3d at 934.

In this case, NIH justifies its Glomar responses under

FOIA Exemptions 6 and 7(C). Exemption 6 protects “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). Exemption 7(C) protects “records or

information compiled for law enforcement purposes, but only to

the extent that the production of such law enforcement records

or information . . . could reasonably be expected to constitute an

unwarranted invasion of personal privacy.” 5 U.S.C.

§ 552(b)(7)(C). PETA does not dispute that any responsive

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documents would constitute “records or information compiled

for law enforcement purposes” for purposes of Exemption 7(C).

Because “Exemption 7(C)’s privacy language is broader than the

comparable language in Exemption 6,” Reporters Comm., 489

U.S. at 756, we confine our analysis to Exemption 7(C).

III.

We review de novo the district court’s conclusion that

Exemption 7(C) justifies NIH’s Glomar responses to PETA’s

second and third FOIA requests. That exemption supports a

Glomar response if acknowledgment of responsive documents

“could reasonably be expected to constitute an unwarranted

invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). To

answer that question, we “weigh the public interest in the release

of information against the privacy interest in nondisclosure.”

Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir.

2003). We consider PETA’s second and third FOIA requests in

turn.

A.

PETA’s second FOIA request encompasses “materials

related to all [NIH] investigations into complaints . . . regarding

[the three named researchers] at Auburn University’s Scott-

Ritchey Research Center.” We conclude that a Glomar response

is warranted for the heartland of responsive documents, but we

hold that NIH’s across-the-board Glomar response is unjustified

because certain types of responsive documents would fall

outside of Exemption 7(C).

1.

PETA’s second request by its terms—and at its

core—seeks disclosure of records that would confirm that NIH

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had investigated the three researchers. We agree with the

district court that Exemption 7(C) justifies a Glomar response

for any such documents.

Courts have repeatedly recognized the “substantial”

privacy interest held by “the targets of law-enforcement

investigations . . . in ensuring that their relationship to the

investigations remains secret.” Roth, 642 F.3d at 1174 (internal

quotation marks omitted). In Jefferson v. Department of Justice,

284 F.3d 172, 180 (D.C. Cir. 2002), for instance, we emphasized

an Assistant U.S. Attorney’s strong privacy interest in avoiding

the disclosure of any investigation of misconduct. See also

Schrecker, 349 F.3d at 666 (“We have long recognized . . . that

‘the mention of an individual’s name in a law enforcement file

will engender comment and speculation and carries a

stigmatizing connotation.’” (quoting Fitzgibbon v. CIA, 911

F.2d 755, 767 (D.C. Cir. 1990))). The same concerns exist in

the context of non-criminal investigations, including

investigations of federal research-grant recipients. See

McCutchen v. U.S. Dep’t of Health & Human Servs., 30 F.3d

183, 187 (D.C. Cir. 1994) (noting that allegations of

“plagiarism, fabrication of research results, and similar breaches

of academic integrity . . . carry a stigma and can damage a

career.”). Here, as the district court observed, acknowledging an

NIH investigation of any of the named researchers would “go[]

to the heart of the privacy interest that Exemption 7(C) was

designed to protect.” PETA, 853 F. Supp. 2d at 155. Indeed,

“[t]here can be no clearer example of an unwarranted invasion

of personal privacy than to release to the public that another

individual was the subject of [a law enforcement] investigation.”

Fund for Constitutional Gov’t v. Nat’l Archives & Records

Serv., 656 F.2d 856, 864 (D.C. Cir. 1981) (quoting Baez v. Dep’t

of Justice, 647 F.2d 1328, 1338 (D.C. Cir. 1980)).

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PETA considers the privacy interest to be materially

diminished in this case for two reasons, neither of which is

persuasive. First, PETA observes that, because its request

names three individuals, an acknowledgment by NIH of

responsive documents would stop short of identifying which

specific one (or ones) of the three researchers had been

investigated. But even if the privacy interest may be lessened to

a degree when the affected individual is identified as among

three persons of whom one (or more) was the subject of an

investigation—as compared with a situation in which a single

individual is revealed to have been the subject of an

investigation—there is still a substantial privacy interest at stake

in the former circumstance. Official acknowledgment that there

was an NIH investigation of at least one—and quite possibly all

three—of the identified researchers would “engender comment

and speculation and carr[y] a stigmatizing connotation.”

Fitzgibbon, 911 F.2d at 767.

Second, PETA notes that other entities, including USDA

and Auburn, have publicly acknowledged complaints and

investigations involving the named researchers. But “the fact

that an event is not wholly private does not mean that an

individual has no interest in limiting disclosure or dissemination

of the information.” Reporters Comm., 489 U.S. at 770 (internal

quotation marks omitted). Here, notwithstanding other entities’

acknowledgment of investigations, NIH’s own official

acknowledgment that it had investigated the named researchers

would carry an added and material stigma. That conclusion is

bolstered by Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir.

1999), and Moore v. CIA, 666 F.3d 1330, 1333 n.4 (D.C. Cir.

2011). In both cases, we upheld CIA Glomar responses even

though other agencies had previously disclosed responsive

information. Although Frugone and Moore did not specifically

involve Exemption 7(C), they rest on the special significance of

official acknowledgment by the agency itself. That significance

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tips the balance here towards the researchers’ privacy interest,

despite the third-party disclosures.

In light of the substantial privacy interests at stake,

Exemption 7(C) authorizes a Glomar response unless the public

interest in disclosure is strong enough to justify the privacy

invasion. PETA “must show that the public interest sought to be

advanced is a significant one, an interest more specific than

having the information for its own sake,” and also that “the

information is likely to advance that interest.” Nat’l Archives &

Records Admin. v. Favish, 541 U.S. 157, 172 (2004). In

addition, the only cognizable public interest under FOIA is “the

citizens’ right to be informed about what their government is up

to.” Reporters Comm., 489 U.S. at 773 (internal quotation

marks omitted). There is thus no cognizable FOIA interest in

examining whether private individuals conduct animal research

in an appropriate manner: that interest does not speak directly

to governmental activity. See id.

On the other hand, there is a cognizable public interest in

learning how NIH handles complaints concerning animal abuse

and misappropriation of federal research funds. Responsive

documents might illuminate various aspects of NIH’s

operations, including how the agency decides whether to

investigate complaints and how it conducts investigations.

PETA asserts that it seeks to uncover precisely that sort of

information. Any such information would advance the public

interest in “shed[ding] light on an agency’s performance of its

statutory duties.” Id.; see also Nation Magazine, 71 F.3d at 894-

95 (“[T]he mere fact that records pertain to an individual’s

activities does not necessarily qualify them for exemption. Such

records may still be cloaked with the public interest if the

information would shed light on agency action.”).

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In the circumstances of this case, however, we conclude

that the public interest in understanding the agency’s

investigatory processes fails to outweigh the researchers’

substantial interest in nondisclosure. We have consistently held

that Exemption 7(C) authorizes Glomar responses to

comparable FOIA requests seeking information about particular

individuals. For example, in Jefferson, we considered a request

seeking investigatory records concerning a specific Assistant

U.S. Attorney. 284 F.3d at 175. We not only upheld the

agency’s Glomar response as to that part of the request, but we

found the “result virtually compelled by” our decisions. Id. at

179 (citing Kimberlin v. Dep’t of Justice, 139 F.3d 944, 948

(D.C. Cir. 1998)); see also Beck v. Dep’t of Justice, 997 F.2d

1489, 1493-94 (D.C. Cir. 1993) (upholding Glomar response to

request for any complaints or other investigatory files

concerning two named Drug Enforcement Administration

agents); Dunkelberger v. Dep’t of Justice, 906 F.2d 779, 782

(D.C. Cir. 1990) (upholding Glomar response to request for a

specific FBI agent’s disciplinary records). In each of those

cases, the FOIA request implicated the public interest in

shedding light on agency investigatory procedures—the same

interest PETA asserts here. Yet we have consistently found that

interest, without more, insufficient to justify disclosure when

balanced against the substantial privacy interests weighing

against revealing the targets of a law enforcement investigation.

We see no reason to reach a different conclusion here.

That result is fully consistent with our decision in Nation

Magazine, 71 F.3d at 892-96, on which PETA substantially

relies. There, the plaintiff magazine filed a FOIA request with

the U.S. Customs Service for any documents pertaining to then-

presidential candidate H. Ross Perot. Id. at 888. Perot had

publicly stated that he had offered to assist the Customs Service

in its drug interdiction efforts. Id. at 896. The magazine wished

to determine the extent to which the agency had accepted Perot’s

13

offers and privatized some of its operations. Id. at 895-96. We

rejected the Customs Service’s Glomar response. Id. at 893.

Noting the cognizable public interest in learning how the

“agency responded to [Perot’s] overtures,” we held that the

agency’s categorical policy of issuing a Glomar response for

any request naming an individual was too broad. Id. at 895.

Here, the privacy interest is considerably stronger than in

Nation Magazine. Whereas Nation Magazine concerned Perot’s

efforts to assist the Customs Service, PETA’s request relates to

investigations of the three named researchers. As we observed

in Nation Magazine, “records discussing offers of assistance

may implicate a less substantial privacy interest than any records

associating Perot with criminal activity.” Id. at 894.

Additionally, Perot himself had publicly disclosed some of his

communications with the agency. Id. at 896. Here, by contrast,

neither the named researchers nor NIH have made any public

disclosures. The material difference in the character of the

privacy interests at stake in the two cases calls for a different

conclusion here than in Nation Magazine.

For these reasons, we hold that NIH may issue a Glomar

response as to any documents that would confirm the existence

of an investigation into the three named researchers.

2.

If PETA’s second request were confined to records

revealing the existence of an investigation of the three

researchers, NIH’s blanket Glomar response would be fully

warranted and our analysis of that request would be at an end.

The district court construed the second request in precisely that

fashion. See PETA, 853 F. Supp. 2d at 155 (“There is no

question that a response from the agency acknowledging the

existence of the records . . . would confirm that those three

14

individuals were being or had been investigated.”). That

interpretation is understandable. PETA framed the request to

encompass “materials related to all [NIH] investigations into

complaints . . . regarding” the three researchers. So framed, the

request is amenable to an understanding under which it seeks

only documents connected to an ongoing or past investigation of

the three individuals, the disclosure of which would necessarily

reveal the existence of such an investigation.

In view of the duty to construe FOIA requests liberally,

however, see Nation Magazine, 71 F.3d at 890, we understand

PETA’s second request more broadly to reach two additional

categories of documents, neither of which would necessarily

reveal an investigation of the researchers. First, NIH could

possess documents showing that the agency had received

complaints about the researchers that it elected not to

investigate. PETA’s request includes any records “related to”

NIH investigations—not just records of actual investigations.

See id. (emphasizing the broadening effect of the phrase

“pertaining to”). The request therefore encompasses the stages

antecedent to an investigation, including documents explaining

why an investigation did or did not occur. PETA, for example,

hypothesizes an internal NIH memorandum acknowledging the

receipt of PETA’s complaint but stating that the agency would

decline to investigate it due to a lack of resources.

PETA argues that Exemption 7(C) does not justify a

Glomar response for that type of records, reasoning that there

could be no privacy interest in confirming the absence of an

investigation. We conclude, however, that a Glomar response

is valid for such records. If NIH were required to acknowledge

responsive documents in instances where there was no

investigation but were permitted to give a Glomar response in

cases where there had been one, it would become apparent that

a Glomar response really meant that an investigation had

15

occurred. The agency must be permitted to issue a Glomar

response in both situations to maintain the uncertainty essential

to Glomar’s efficacy. We therefore hold that NIH can issue a

Glomar response with regard to documents showing that the

agency received complaints about the researchers but declined

to conduct an investigation in response.

There also exists a second category of responsive

documents beyond those that would necessarily reveal an

investigation of the three researchers: documents showing that

NIH responded to complaints about the three researchers by

conducting an investigation that did not target the researchers

themselves. Although PETA’s request presupposes a complaint

filed against the named researchers, the request, broadly

construed, encompasses documents relating to any ensuing

investigation. So, for example, if NIH responded to a complaint

against the researchers by investigating whether Auburn’s

Institutional Animal Care and Use Committee was performing

proper oversight, any documents related to that investigation

would fall within the terms of the second request.

We conclude that Exemption 7(C) does not justify a

Glomar response for that category of responsive documents.

Because there would be no disclosure of the existence of an

investigation of the named researchers, the privacy interest at

stake would be diminished. On the other side of the balance, the

circumstances would directly implicate the cognizable public

interest in shedding light on NIH’s investigatory processes. See

Reporters Comm., 489 U.S. at 773. Acknowledging an

investigation that did not target the researchers would serve to

advance that public interest without unduly compromising the

researchers’ privacy interests. We therefore hold that disclosure

of documents of that type could not “reasonably be expected to

constitute an unwarranted invasion of personal privacy” for

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purposes of Exemption 7(C), 5 U.S.C. § 552(b)(7)(C); cf. Nation

Magazine, 71 F.3d at 893-95.

Because there exists a category of responsive documents

for which a Glomar response would be unwarranted, NIH’s

assertion of a blanket Glomar response to the second request

cannot be sustained. We thus vacate the district court’s grant of

summary judgment to NIH as to PETA’s second request. On

remand, NIH must search for any documents showing that, in

response to complaints filed against the named researchers, the

agency conducted an investigation other than one targeting the

researchers. But NIH still may issue a narrowed Glomar

response for any documents revealing whether the agency

investigated the researchers themselves. See Am. Civil Liberties

Union v. CIA, 710 F.3d 422, 434 & n.13 (D.C. Cir. 2013)

(contemplating assertion of a “more limited Glomar response”

on remand); Nation Magazine, 71 F.3d at 895-96 (same).

B.

PETA’s third FOIA request seeks copies of any

confidentiality agreement between Auburn University and NIH

“relating to materials and information with regard to an

investigation into the research of [a named researcher] and

colleagues.” NIH’s acknowledgment of responsive documents

would confirm that the agency had investigated the researchers,

implicating substantial privacy interests at the core of

Exemption 7(C). Although there may be a cognizable public

interest in understanding how NIH uses confidentiality

agreements when conducting investigations, that interest alone

cannot overcome the substantial privacy interests at stake. See

Part III.A.1, supra. PETA of course remains free to formulate

a new FOIA request pertaining to NIH’s use of confidentiality

agreements without tying the request to investigations of

specific researchers.

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* * *

We vacate the district court’s grant of summary judgment

to NIH in connection with PETA’s second FOIA request and

remand for proceedings consistent with this opinion. We affirm

the grant of summary judgment to NIH as to PETA’s third FOIA

request.