                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
PEOPLE FOR THE ETHICAL              )
TREATMENT OF ANIMALS,               )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )              Civil Action No. 10-1818 (ABJ)
                                    )
NATIONAL INSTITUTES OF HEALTH )
DEPARTMENT OF HEALTH AND            )
HUMAN SERVICES,                     )
                                    )
                  Defendant.        )
____________________________________)


                                MEMORANDUM OPINION

       Plaintiff People for the Ethical Treatment of Animals (“PETA”) brings this action against

defendant National Institutes of Health (“NIH”) under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552 (2006), and the Administrative Procedure Act (“APA”), 5 U.S.C. §

706(2) (2006). Plaintiff seeks documents concerning all NIH investigations into complaints

regarding three specifically named researchers at the Auburn University Scott-Ritchey Research

Center (“Auburn”) in Alabama. Plaintiff also seeks a confidentiality agreement between Auburn

and NIH, relating to materials and information regarding an investigation concerning one of the

three named individuals. NIH gave a Glomar response to these requests, refusing to confirm or

deny whether it had responsive records.      Additionally, plaintiff requests access to records

regarding the NIH Office of Laboratory Animal Welfare (“OLAW”) files concerning Auburn.

Defendant provided plaintiff with some documents in response to this request but withheld all or

portions of documents pursuant to certain FOIA Exemptions.
       Plaintiff seeks a declaratory judgment finding that defendant violated FOIA by failing to

disclose all non-exempt responsive records. Compl. at 11 (prayer for relief) [Dkt. #1]. Plaintiff

additionally asks this Court to declare that defendant has violated the APA by requiring Auburn

University to enter into a confidentiality agreement that plaintiff contends is contrary to state

law. Id. Defendant filed a motion to dismiss in part and for summary judgment. [Dkt. # 13].

Plaintiff filed a cross-motion for partial summary judgment. [Dkt. # 15]. For the reasons below,

the Court will deny defendant’s motion in part with respect to the motion to dismiss and grant in

part with respect to the motion for summary judgment. The Court will deny plaintiff’s cross-

motion for partial summary judgment.

I.      BACKGROUND

       Plaintiff PETA is a non-profit organization that advocates for animal rights. Compl. ¶ 3.

As a part of its advocacy efforts, PETA relies on FOIA requests to uncover information

concerning the abuse of animals used in laboratory research, which it then disseminates to the

public. Goodman Decl. ¶¶ 4–5. Defendant NIH is a federal agency within the Department of

Health and Human Services (“HHS”). Compl. ¶ 4. Auburn University is a public university in

Alabama that receives federal funding from NIH for research on laboratory animals. Id. ¶ 9.

Institutions that conduct animal research with NIH funds must adhere to the Public Health

Service’s Policy on Human Care and Use of Laboratory Animals (“PHS Policy”), administered

by OLAW. Id. ¶ 8.

       The complaint alleges that an Auburn University employee contacted NIH on September

27, 2005, to report the “misappropriation of NIH funds” by certain Auburn University

researchers in connection with their work on a five-year NIH research grant. Id. ¶ 10. The

employee alleged that the researchers were misapplying funds from the NIH grant to perform



                                               2
other procedures for private clients. Id. Subsequently, PETA filed the three FOIA requests

underlying this action in order to discover whether NIH had taken any action with respect to

these allegations, including whether NIH had conducted investigations into the three individual

researchers PETA believes are responsible for violations of NIH Policy and the Animal Welfare

Act (“AWA”), 7 U.S.C. § 2131 (2006). Compl. ¶¶ 11, 16, 21.

   A. Factual Background

       Plaintiff PETA made three separate FOIA requests that give rise to this action. On

February 28, 2006, PETA submitted a FOIA request (the “First Request”) to NIH seeking

“copies of all OLAW files concerning Auburn University.” Def.’s Statement of Material Facts

(“Def.’s SMF”) ¶ 10. On November 22 and December 28, 2006, NIH responded to the First

Request, stating that 384 responsive pages had been located and that certain information had

been withheld from disclosure. Id. NIH produced forty-seven responsive pages in full or with

redactions but withheld 323 pages in full.        Maloney Decl. ¶ 11.        PETA filed a timely

administrative appeal, alleging that NIH had failed to provide any reference to the FOIA

exemptions upon which it relied to justify nondisclosure. Ex. 6 to Maloney Decl. The agency

issued a final decision on July 12, 2010, explaining for the first time the basis of its withholdings

under FOIA Exemptions 4, 6, 7(C), and 7(D). Def.’s SMF ¶ 13.

       While PETA’s appeal of its First Request was still pending, PETA filed a second FOIA

request (the “Second Request”) on July 25, 2007, seeking copies of information and other

materials related to all NIH investigations into complaints filed from 2005 to present about the

three specifically named individuals at Auburn. Maloney Decl. ¶ 4. On February 20, 2008, NIH

responded to the Second Request, asserting that it could neither confirm nor deny the existence

of responsive records and informing PETA of its right to appeal the agency’s decision within



                                                 3
thirty days. Def.’s SMF ¶¶ 2–3. NIH further stated that even if the requested records existed,

they would be exempt from disclosure under FOIA Exemption 6. Id. PETA did not file a timely

administrative appeal; instead, PETA waited six months to appeal NIH’s February 20, 2008

response letter. Id. ¶¶ 4–5.

        On August 21, 2008, plaintiff challenged the February 20, 2008 response letter, reiterated

its Second Request for records, and additionally requested (the “Third Request”) a copy of the

confidentiality agreement between Auburn University and NIH regarding the alleged

investigation of one of the three individuals cited in the Second Request. Id. ¶ 5. On August 26,

2008, NIH responded that PETA’s appeal of the February 20, 2008 response letter was untimely,

but that the agency was in receipt of its Third Request and would respond shortly. Id. ¶ 6. Three

days later, defendant responded to the Third Request, stating that the agency could neither

confirm nor deny the existence of responsive records. Id. ¶ 7. Defendant also asserted that, even

if the requested records existed, they would be exempt from disclosure under FOIA Exemption

6. Id. ¶ 7.

        Plaintiff timely appealed, and defendant issued a final decision on July 12, 2010,

upholding its earlier decision to neither confirm nor deny the existence of responsive records and

further stated that, even if the requested records existed, they would be exempt from disclosure

under FOIA Exemption 6 or 7(C). Id. ¶¶ 8–9. Although defendant acknowledged in its final

decision that plaintiff’s appeal was timely only with respect to its Third Request, the agency

nevertheless offered “a substantive response to the appeal of both matters.”            Ex. 2 to

Maloney Decl.




                                                4
       B. The Lawsuit Before This Court

       On October 27, 2010, PETA filed this action seeking to compel disclosure of records

responsive to its FOIA requests. Count I of the complaint alleges that NIH has “no statutory

basis” under FOIA for redacting or withholding records responsive to its First Request.

Compl. ¶ 25. Count II alleges that NIH has “no statutory basis” under FOIA to “refus[e] to

process PETA’s [Second Request and Third Request] for information concerning investigations

of particular recipients of federal funding, or to refuse to disclose the information requested by

those requests.” Id. ¶ 26. Count III alleges that NIH violated the APA by requiring “Auburn

University to enter into a ‘confidentiality agreement’ that purportedly bars the University from

disclosing records to PETA under the Alabama Open Records Act.” Id. ¶ 27.

       On March 10, 2011, NIH filed a motion to dismiss in part and for summary judgment.

Defendant moved to dismiss Count II of the complaint in part, which concerns the Second

Request made in July 2007, on the grounds that plaintiff failed to file a timely appeal and

therefore did not exhaust administrative remedies. Def.’s Mem. in Supp. of Mot. to Dismiss in

Part and for Summ. J. (“Def.’s Mem.”) at 3–8 [Dkt. #13]. Defendant also moved to dismiss

Count III of the complaint, the APA claim, on the grounds that APA review is “only available

when there is no other remedy.” Id. at 2; accord id. at 30–35.

       PETA cross-moved for partial summary judgment [Dkt. # 15] on April 29, 2011. In its

memorandum, plaintiff informed the Court that it is now “challenging only the government’s

assertion of a ‘Glomar’ response and the withholding of the ‘confidentiality agreement’ it

required from Auburn University, in refusing to process PETA’s July 25, 2007 and August 21,

2008 requests.” Pl.’s Mem. in Supp. of Mot. for Partial Summ. J. and Opp. to Def.’s Mot. (“Pl.’s

Mem.”) at 2 n.1. [Dkt. # 15]. Plaintiff also did not respond to defendant’s arguments with



                                                5
respect to Count I or Count III in its opposition to defendant’s motion for summary judgment.

As such, the Court will treat Count I and III as conceded and will dismiss these claims without

prejudice. See Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25

(D.D.C. 2003) (“It is well understood in this Circuit that when a plaintiff files an opposition to a

dispositive motion and addresses only certain arguments raised by the defendant, a court may

treat those arguments that the plaintiff failed to address as conceded.”). Count II, which alleges

that defendant violated FOIA by giving a Glomar response to the Second and Third FOIA

requests, is the only claim still at issue.

 II.     STANDARD OF REVIEW

        “FOIA cases are typically and appropriately decided on motions for summary judgment.”

Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). In the FOIA context, “the sufficiency of

the agency’s identification or retrieval procedure” must be “genuinely in issue” in order for

summary judgment to be inappropriate. Weisberg v. DOJ, 627 F.2d 365, 370 (D.C. Cir. 1980),

quoting Founding Church of Scientology v. NSA, 610 F.2d 824, 836 (D.C. Cir. 1979). However,

a plaintiff “cannot rebut the good faith presumption” afforded to an agency’s supporting

affidavits “through purely speculative claims about the existence and discoverability of other

documents.” Brown v. DOJ, 742 F. Supp. 2d 126, 129 (D.D.C. 2010), quoting SafeCard Servs.,

Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted).

        In any motion for summary judgment, the Court “must view the evidence in the light

most favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew

making credibility determinations or weighing the evidence.” Montgomery v. Chao, 546 F.3d

703, 706 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48

(1986). However, where a plaintiff has not provided evidence that an agency acted in bad faith,



                                                 6
“a court may award summary judgment solely on the basis of information provided by the

agency in declarations.” Moore, 601 F. Supp. 2d at 12. The district court reviews the agency’s

action de novo, and “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B)

(2006); accord Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

III.    ANALYSIS

       The purpose of FOIA is to require the release of government records upon request and to

“ensure an informed citizenry, vital to the functioning of a democratic society, needed to check

against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins

Tire & Rubber Co., 437 U.S. 214, 242 (1978). At the same time, Congress recognized “that

legitimate governmental and private interests could be harmed by the release of certain types of

information and provided nine specific exemptions under which disclosure could be refused.”

FBI v. Abramson, 456 U.S. 615, 621 (1982); see also Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d

918, 925 (D.C. Cir. 2003) (“FOIA represents a balance struck by Congress between the public’s

right to know and the government’s legitimate interest in keeping certain information

confidential.”) The Supreme Court has instructed that FOIA exemptions are to be “narrowly

construed.” Abramson, 456 U.S. at 630.

       To prevail in a typical FOIA action, an agency must satisfy two elements. First, the

agency must demonstrate that it has made “a good faith effort to conduct a search for the

requested records, using methods which can be reasonably expected to produce the information

requested.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “[A]t the

summary judgment phase, an agency must set forth sufficient information in its affidavits for a

court to determine if the search was adequate.” Nation Magazine, Wash. Bureau v. U.S. Customs

Serv., 71 F.3d 885, 890 (D.C. Cir. 1995), citing Oglesby, 920 F.2d at 68. Such agency affidavits



                                               7
attesting to a reasonable search “are afforded a presumption of good faith,” Defenders of Wildlife

v. U.S. Dep’t of Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004), and “can be rebutted only ‘with

evidence that the agency’s search was not made in good faith,’” id., quoting Trans Union LLC v.

FTC, 141 F. Supp. 2d 62, 69 (D.D.C. 2001). Second, an agency must show that “materials that

are withheld [] fall within a FOIA statutory exemption.” Leadership Conference on Rights v.

Gonzales, 404 F. Supp. 2d 246, 252 (D.C. Cir. 2005).

       However, there are certain times when an agency may properly respond to a FOIA

request without searching for responsive records at all. This is known as a Glomar response and

it allows an agency to “refuse to confirm or deny the existence of records where to answer the

FOIA inquiry would cause harm cognizable under an 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). To

show that a Glomar response is appropriate, the agency must explain why it can neither confirm

nor deny the existence of responsive records. See Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C.

Cir. 1976) (requiring the agency “to provide a public affidavit explaining in as much detail as is

possible the basis for its claim that it can be required neither to confirm nor to deny the existence

of the requested records”). This inquiry is not based on the actual content of the documents but

on whether the potential harm created by revealing the existence of the documents is protected

by a FOIA exemption. See Wolf, 473 F.3d at 374 (“In determining whether the existence of

agency records vel non fits a FOIA exemption, courts apply the general exemption review

standards established in non-Glomar cases.”).

       A. PETA’s Failure to Timely Appeal Denial of Its Second Request Does Not Bar the
          Court’s Consideration of Its Claim.

       Defendant moves to dismiss Count II with respect to the Second Request because it

claims that plaintiff did not timely appeal NIH’s denial of the request. Def.’s Mem. at 4–8. As a

                                                 8
result, defendant argues that the Court should dismiss for failure to exhaust its administrative

remedies. Id. The Court finds that under the applicable case law in this Circuit, plaintiff’s

failure to timely appeal the denial does not bar consideration of the Second Request.

       As the D.C. Circuit noted in Wilbur v. CIA, although “FOIA’s administrative scheme

‘favors treating failure to exhaust [administrative remedies] as a bar to judicial review,’” 355

F.3d 675, 677 (D.C. Cir. 2004), quoting Hildago v. FBI, 344 F.3d 1256, 1259 (D.C. Cir. 2003),

“exhaustion is a prudential consideration rather than a jurisdictional prerequisite,” id.

Consequently, where judicial review does not undermine “the purposes and policies underlying

the exhaustion requirement, namely, to prevent premature interference with agency process, to

give the parties and the courts benefit of agency’s experience and expertise[,] and to compile an

adequate record for review,” a district court is “not precluded . . . from deciding the merits of

[the] FOIA claim notwithstanding [plaintiff’s] failure to comply with [an] appeal deadline.” Id.

       In Wilbur, the court noted that the plaintiff “did not bypass the administrative review

process but pursued it to its end; he was simply late (albeit four years late).” Id. In response, the

CIA, which was free to refuse his appeal, chose to process it and issued a final opinion affirming

the agency’s prior determination. Id. Consequently, the court concluded that judicial review

was appropriate. This case provides a situation similar to the one in Wilbur. Here, PETA did not

attempt to bypass the administrative review process; instead, it reiterated its requests in a

document sent to NIH six months later. Def.’s SMF ¶ 5. NIH then processed that complaint and

responded to those requests. Ex. 2 to Maloney Decl. (noting that, although the appeal “was not

timely with respect to the request for the investigative records themselves,” NIH will nonetheless

provide “a substantive response to the appeal of both matters”). As a result, this Court will

review PETA’s Second Request because there are no prudential considerations that would



                                                 9
militate in favor of dismissal. Because this is the only grounds for dismissal that has not yet

been conceded by plaintiff, the Court will deny defendant’s motion [Dkt. # 13] with respect to its

argument that Count II should be dismissed for failure to exhaust.

       B. NIH Properly Submitted a Glomar Response to PETA’s Second and Third
          FOIA Requests.

       Defendant contends that it can neither confirm nor deny the existence of records

responsive to plaintiff’s Second and Third Requests because acknowledging the existence of

such records would, in and of itself, disclose information otherwise protected by Exemptions

7(C) and 6. Cornell Decl. ¶¶ 4–10; Def.’s Mem. at 8–9 (“NIH averred that being required to

acknowledge whether it had such records was a clearly unwarranted invasion of the personal

privacy of the individuals named in plaintiff’s two FOIA requests.”).        Given the agency’s

Glomar response, the Court must determine whether revealing the existence of documents

related to an NIH investigation into the three named individuals or whether revealing the

existence of a confidentiality agreement between Auburn and NIH regarding one of the three

individuals would constitute an “invasion of personal privacy” under either Exemption 6 or 7(C).

       FOIA Exemption 7(C) exempts documents compiled for law enforcement that “could

reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. §

552(b)(7).   Because this is a lower standard than Exemption 6, which requires a “clearly

unwarranted” invasion of privacy, id. 552(b)(6), the Court will first address Exemption 7(C). In

order for particular records to qualify for this exemption, the agency must first demonstrate that

the documents were compiled for law enforcement purposes. See Rural Housing Alliance v. U.S.

Dept. of Agriculture, 498 F.2d 73, 80 (D.C. Cir. 1974). 1 This Circuit has consistently held that,



1      NIH submits that the requested documents were “compiled for law enforcement
purposes” because “the records concern investigations of alleged animal research or Animal
                                               10
where a FOIA request for law enforcement records invokes the privacy interests of any third

party mentioned in those records (including investigators, suspects, witnesses, and informants),

the exemption applies unless there is an overriding public interest in disclosure. See Schrecker v.

DOJ, 349 F.3d 657, 661 (D.C. Cir. 2003); Lewis v. DOJ, 609 F. Supp. 2d 80, 84 (D.D.C. 2009).

       1.   There is a legitimate privacy interest at stake in this case.

       Here, defendant made a Glomar response to plaintiff’s Second and Third FOIA requests,

stating that it neither “confirmed nor denied the existence of responsive records.” Cornell Decl.

¶ 10. So, the question the Court must resolve at this point is not whether the documents need to

be produced but whether merely acknowledging their existence invades an interest that the FOIA

exemptions were designed to protect.            Plaintiff seeks all materials concerning NIH’s

investigations into three individuals, including a confidential agreement about an alleged

investigation. There is no question that a response from the agency acknowledging the existence

of the records and processing the FOIA requests further would confirm that those three

individuals were being or had been investigated. This confirmation goes to the heart of the

privacy interest that Exemption 7(C) was designed to protect. See Nation Magazine, 71 F.3d at

894 n.8 (“[A] Glomar response is appropriate where an acknowledgement that records exist

would provide the requester with the very information the exemption is designed to protect; that

is, whether an individuals has been the target of a law enforcement investigation.”)

       Plaintiff argues first that the Glomar response is not appropriate here because a full FOIA

response would not invade a personal privacy interest because the information “would bear only

on whether [the three individuals] were the subjects of an investigation concerning their


Welfare Act violations and includes information provided by whistleblowers.” Def.’s Mem. at
25–26, quoting Maloney Decl. ¶¶ 27, 29 (internal quotation marks omitted). Plaintiff does not
dispute that the records were compiled for law enforcement purposes.


                                                  11
professional conduct.” Pl.’s Mem. at 29. 2 But plaintiff mischaracterizes the nature of the

privacy interest that has been asserted in this case. This Circuit has recognized that a member of

the public has a privacy interest in information that might suggest that the individual was the

target of a law enforcement investigation. See, e.g., Nation Magazine, 71 F.3d at 894 (“noting

that “individuals have an obvious privacy interest cognizable under Exemption 7(C) in keeping

secret the fact that they were subjects of a law enforcement investigation”); Dunkelberger v.

DOJ, 906 F.2d 779, 781 (D.C. Cir. 1990) (finding that “Exemption 7(C) takes particular note of

the ‘strong interest’ of individuals, whether they be suspects, witnesses, or investigators, ‘in not

being associated unwarrantedly with alleged criminal activity,’”); quoting Stern v. FBI, 737 F.2d

84, 91–92 (D.C. Cir. 1984); Fund for Constitutional Gov’t v. Nat’l Archives and Records Serv.,

656 F.2d 856, 864 (D.C. Cir. 1981) (“There 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 an . . . investigation”), quoting Baez v. DOJ, 647 F.2d 1328, 1338 (D.C. Cir. 1980). None of

these cases make a distinction between whether the alleged investigation concerns an

individual’s personal or professional conduct – what matters is that there is a privacy interest in a

person’s identity being associated with the investigation. If the Court were to accept plaintiff’s

theory that a person never has a personal privacy interest in investigations into their professional

conduct, it would mean that no target of a white collar criminal grand jury investigation would

have a privacy interest in that fact, which cannot be true.




2      Plaintiff blends its arguments that the documents are not protected by either Exemption 6
and Exemption 7(C), but that approach dilutes Congress’ clear directive in the FOIA statute that
law enforcement materials are presumptively exempt if their disclosure “could reasonably be
expected” to involve an unwarranted invasion of personal privacy. 5 U.S.C. § 552(b); Graff v.
FBI, No. 09-2047, 2011 WL 5401928, at *7 (D.D.C. Nov. 9, 2011).
                                                 12
       Plaintiff relies on several cases that it suggests stand for the proposition that the privacy

interest in Exemption 7(C) does not apply to information regarding professional or business

activities. Pl.’s Mem. at 30, citing Wash. Post v. HHS, 690 F.2d 252, 262 (D.C. Cir. 1982); Sims

v. CIA, 642 F.2d 562, 574 (D.C. Cir. 1980); Cohen v. EPA, 575 F. Supp. 425, 429 (D.D.C. 1983).

But plaintiff overstates the reach of these holdings. While they recognize that “[t]he privacy

exemption does not apply to information regarding professional or business activities,” Cohen,

575 F. Supp. at 429, that is not the nature of the privacy interest that is at stake in this case. The

privacy interest here concerns being identified as a target of a law enforcement investigation, and

because plaintiff has requested documents that bear directly on that issue, there is no question

that the requested information falls squarely within the category of documents that Exemption

7(C) aims to protect.

       Plaintiff next contends that the revelation of the existence of an investigation into the

three individuals would not invade a privacy interest because the fact that the researchers are the

subject of an NIH investigation is already publicly known. Pl.’s Mem. at 29–31. But plaintiff

has failed to point to anything indicating the government, as opposed to some other organization

or source, has acknowledged the existence of investigations. And even if it had, the Supreme

Court has explained that the fact that some information may be publicly available from other

sources does not mean that FOIA’s privacy exemptions cease to apply. U.S. Dep’t of Defense v.

Fed. Labor Relations Auth., 510 U.S. 487, 500 (1994) (“An individual’s interest in controlling

the dissemination of information regarding personal matters does not dissolve simply because

that information may be available to the public in some form.”); see also Barnard v. Dep’t of

Homeland Sec., 598 F. Supp. 2d 1, 12 (D.D.C. 2009) (“Plaintiff’s argument is foreclosed by a




                                                 13
long line of cases recognizing that individuals maintain an interest in their privacy even where

some information is known about them publicly.”). 3

       As evidence that the existence of investigations is publicly known, plaintiff cites its own

complaint submitted to NIH asking that NIH investigate the researchers in question. Pl.’s Mem.

at 30, citing Ex. W to Pl.’s Mem. Contrary to plaintiff’s suggestion, this document does not

establish the fact that an investigation is underway, even if NIH has a policy that it “will”

investigate allegations of non-compliance with animal care rules, Ex. D to Pl.’s Mem. at 19.

       Plaintiff also directs the Court to exhibits submitted with its motion for summary

judgment and states that “USDA has already released voluminous documents demonstrating that

these three researchers are the subject of alleged violations of the animal welfare policy.” Pl.’s

Mem. at 34. Specifically, plaintiff points to Exhibit R, a letter from Dr. Holland to the USDA

which expresses concern over the “negligent and often cruel treatment of animals.” Ex. R. to

Pl.’s Mem. While this letter addressed the same subject matter of the alleged investigation and

names the three individuals referenced in plaintiff’s FOIA requests, it cannot be said that Dr.

Holland’s letter confirms as a matter of public record that these three people are the subject of an

NIH investigation. 4 There is no indication that this document was disseminated beyond the



3       The cases that plaintiff cites on page 31 of its motion for partial summary judgment that
state that an individual’s privacy interest is diminished when the information sought has already
been publicly disclosed concern circumstances where the government itself has disclosed the
information. Pl.’s Mem. at 31, citing Am. Civil Liberties Union v. U.S. Dep’t of Defense, 628
F.3d 612, 620 (D.C. Cir. 2011); Chesapeake Bay Found., Inc. v. U.S. Army Corps of Eng’rs, 722
F. Supp. 2d 66, 72 (D.D.C. 2010); Detroit Free Press, Inc. v. DOJ, 73 F.3d 93, 97 (6th Cir.
1996). All of the documents that plaintiff relies on here to show that the investigations are
publicly known originated from PETA itself or from other third parties but, importantly, not
from the government. Therefore, these cases are inapplicable.

4       The fact that plaintiff may have deduced the identities of individuals whose names and
identifying information have been withheld or that their identities have been previously disclosed
does not diminish their privacy interests. Fitzgibbon v. CIA, 911 F.2d 755, 768 (D.C. Cir. 1990).
                                                14
intended recipient of the letter. Similarly, plaintiff relies on Exhibit JJ, which is PETA’s 53-page

complaint to the USDA. Ex. JJ to Pl.’s Mem. Again, the fact that complaints have been made

public does not mean that the question of whether these individuals are now the subject of an

active NIH investigation has been publicly answered. Plaintiff also cites Exhibit Y, which is a

non-authenticated interoffice memo that plaintiff claims originated from USDA. Ex. Y to Pl.’s

Mem. The memo notes that USDA inspections found the allegations in Complaint # 06-305

(which, according to paragraph 16 of the Goodman Declaration, is PETA’s complaint) to be

partially valid. But it cannot be said that a non-authenticated interoffice memo is tantamount to

public acknowledgment of the existence of an investigation relating to the three named

individuals. The same is true for the document in which plaintiff claims that Auburn confirmed

that NIH conducted an investigation in a letter to PETA. Ex. FF to Pl.’s Mem. This is not an

official acknowledgment by NIH that there is an investigation. The letter is, at most, speculation

on Auburn’s behalf about a process in which it may or may not have been involved. Thus, none

of the documents plaintiff has provided to the Court establishes that the investigators are the

subject of a NIH investigation. 5 The Court finds that there is a significant privacy interest here

that would be invaded by the mere acknowledgement of the existence of the requested records. 6



Furthermore, plaintiff has the burden of “pointing to specific information in the public domain
that appears to duplicate that being withheld.” Davis v. DOJ, 968 F.2d 1276, 1279 (D.C. Cir.
1992) (internal citation and quotation marks omitted). For the reasons discussed above, plaintiff
has failed to meet that burden in this case.

5       Plaintiff also cites exhibits showing that it is no secret that the three individuals are
involved in animal research work, but that is not the question presented by this case. Pl.’s Mem.
at 32, citing e.g., Ex. N to Pl.’s Mem. and Goodman Decl. ¶¶ 8–9. Rather, the question the Court
must resolve is whether, if the agency gave anything more than a Glomar response, it would
invade the interest the exemption is designed to protect.

6      Plaintiff argues that the only privacy interest that defendant has advanced is that
“individuals who engage in or who are associated with animal research are frequently the target
                                                15
       2. Plaintiff has failed to identify any public interest that would overcome the recognized
          privacy interest protected in Exemption 7(C).

       The Court next must weigh the public interest in disclosure against the legitimate privacy

interest it has found. Where a legitimate privacy interest exists, the requester must “(1) 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 (2) show the information is likely to advance that

interest.” Boyd v. DOJ, 475 F.3d 381, 387 (D.C. Cir. 2007), quoting Nat’l Archives & Records

Admin. v. Favish, 541 U.S. 157, 172 (2004) (internal quotation marks omitted). The Supreme

Court has determined that the only relevant public interest for purposes of Exemption 7(C) is

“the citizens’ right to be informed about what their government is up to.” DOJ v. Reporters

Comm. for Freedom of the Press, 489 U.S. 749, 773 (internal quotation marks omitted). In

determining whether to disclose a document, a court must weigh “the nature of the requested

document and its relationship to the basic purpose of the Freedom of Information Act to open

agency action to the light of public scrutiny.” Id. at 772, quoting Dep’t of Air Force v. Rose, 425

U.S. 352, 372 (1976). “That purpose, however, is not fostered by disclosure of information

about private citizens that is accumulated in various governmental files but that reveals little or

nothing about an agency’s own conduct.” Id. at 773. Moreover, courts in this Circuit have

consistently held that where an individual seeks law enforcement records that implicate the

privacy interests of a third party, the requester bears the burden of asserting the public interest at




of harassment and threats, and times actual acts of violence.” Pl.’s Opp. at 32, quoting Def.’s
Mem. at 21. Plaintiff contends that this privacy interest is not legitimate because defendant has
failed to produce evidence that these individuals have ever been the target of harassment and
threats. Id. at 33.     But the Court’s ruling that a privacy interest exists here does not rest on
the fact that there is a potential for harassment of threats; it is grounded in the fact that these
individuals have a privacy interest in not being identified as the targets of law enforcement
investigations. See Maloney Decl. ¶ 10.
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play. See, e.g., Boyd, 475 F.3d at 387; Lewis, 609 F. Supp. 2d at 84; Fischer v. U.S. Dep’t of

Justice, 596 F. Supp. 2d 34, 47 (D.D.C. 2009).

       Plaintiff asserts that there is a strong public interest in knowing “whether those who

conduct research on animals are treating them humanely” and points to the fact that Congress has

enacted two laws on the subject as support for this point. Pl.’s Mem. at 37–38, citing the Animal

Welfare Act, 7 U.S.C. § 2131, and the Health Research Extension Act, 42 U.S.C. § 289(d). Even

if plaintiff is correct that that there is great public interest in knowing whether animals have been

treated humanely, that concern does not allows citizens to know “what their government is up

to.” Reporters Comm., 489 U.S. at 773 (emphasis added). As the Supreme Court has explained,

“FOIA’s central purpose is to ensure that the Government’s activities be opened to the sharp eye

of public scrutiny, not that information about private citizens that happens to be in the warehouse

of the Government be so disclosed.” Id. at 744. Here, the release of the information plaintiff has

requested would reveal nothing about the government’s own conduct, as opposed to the conduct

of individual researchers or recipients of government funding. Nation Magazine, 71 F.3d at 896

(D.C. Cir. 1995). 7

       Plaintiff also contends that the public has an interest in “ensuring that federal taxpayer

dollars are not misused.”     Pl.’s Mem. at 38.       But plaintiff’s FOIA request does not seek

documents that would shed light on that issue. Instead, plaintiff seeks information about whether

NIH investigated three particular individuals for violations of the Animal Welfare Act at an


7       Furthermore, the Court notes that the government did not give a Glomar response to
plaintiff’s FOIA request dated February 28, 2006 requesting “copies of all OLAW files
concerning Auburn University.” Plaintiff received documents from defendant as a result of this
request that address “the agency’s performance of its statutory duties.” Lepelletier v. FDIC, 164
F.3d 37, 46 (D.C. Cir. 1999), quoting Fed. Labor Relations Auth., 510 U.S. at 497 (internal
quotation marks omitted). So, to the extent that plaintiff has asserted a valid public interest in
knowing whether and how NIH is performing its mission, there is a colorable argument that that
interest has been served.
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educational institution that receives federal grant money. Plaintiff’s FOIA request does not align

with the public interest it now asserts.

       Because plaintiff has failed to identify any public interest that would overcome the

recognized privacy interest protected in Exemption 7(C), the Court concludes that defendant’s

Glomar response was proper. Because the Glomar response was proper under Exemption 7(C),

the Court need not consider Exemption 6.

                                           CONCLUSION

       Because defendant met its obligations under FOIA, the Court will deny in part

defendant’s motion to dismiss and grant in part defendant’s motion for summary judgment

[Dkt. # 13].    The Court will deny plaintiff’s cross motion for partial summary judgment

[Dkt. # 15]. Accordingly, Count I and III will be dismissed without prejudice, and judgment for

the defendant will be entered on Count II. A separate order will issue.




                                             AMY BERMAN JACKSON
                                             United States District Judge

DATE: April 10, 2012




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