On this date 46 years ago, President Nixon and his aides had a conversation about the Watergate break-in and cover-up.  What did they say?  We do not fully know, because the tape of the conversation has an 18 and ½ minute gap.  That gap was one of the more mysterious aspects of an ugly saga that culminated in Nixon’s resignation two years later.  There is a lot to the legacy of Watergate, including the insistence on appending “-gate” to every scandal (e.g., Billygate, Bountygate, Bridgegate, Debategate, Deflategate, Emailgate, Koreagate, Nannygate, Pizzagate, Travelgate, and Wienergate), but there is no doubt that the greatest impact of Watergate was on the public’s mistrust of government.  One manifestation of that growing mistrust was the 1974 enactment of the Privacy Act amendments to the Freedom of Information Act (FOIA).  Gerald Ford, the man who succeeded to the Presidency after Nixon’s fall (and the man who pardoned Nixon), initially wanted to sign the FOIA-strengthening amendments, but a couple of movers and shakers from whom we would later hear a lot — Chief of Staff Donald Rumsfeld and deputy Dick Cheney – opposed the amendments because of potential leaks.  Another guy who would become a bit more famous — Assistant Attorney General for the Office of Legal Counsel Antonin Scalia — advised that the bill was unconstitutional and even telephoned the CIA asking them to lobby the White House staff against it.  That lobbying worked.  President Ford vetoed the bill.  But Congress overrode President Ford’s veto, giving the United States the core Freedom of Information Act still in effect today, with judicial review of executive secrecy claims.  But Scalia was like a dog with a bone.  Years later, he called the 1974 amendments “the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost-Benefit Analysis Ignored.”  Worst of all, in Scalia’s view, was the provision for judicial review:  “an agency denies a freedom of information request, shazam!—the full force of the Third Branch of the government is summoned to the wronged party’s assistance.”

 

But sometimes the agency wins.  That is what happened in Henson v. Department of Health and Human Services, 2018 WL 2994878 (7th Cir. June 15, 2018).  The plaintiff submitted a FOIA request to the Food and Drug Administration (FDA) seeking documents related to the premarket approval process for a glucose monitoring system. The agency produced many responsive documents, but not enough to suit the plaintiff.  He resorted to the judicial review provisions of FOIA – the ones Scalia decried — naming the agency and the two agency employees as defendants. On the defendants’ motion, district judge Herndon (someone we in the DDL world know well) dismissed the two agency employees from the case, concluding that FOIA “does not create a cause of action for a suit against an individual employee of a federal agency.” A magistrate judge then granted the agency’s request for a stay of discovery because cases under FOIA generally proceed to discovery only after a plaintiff’s case survives a motion for summary judgment.  The agency supplied the plaintiff with a Vaughn index—a list of each redacted or withheld document cross-referenced with the exemption that the agency asserts is applicable.  The FDA moved for summary judgment, arguing that it had conducted a reasonable search for all documents responsive to the FOIA requests and that it had properly withheld and redacted documents pursuant to FOIA exemptions for trade secrets, agency deliberative documents, and patient and employee private information.  Judge Herndon granted summary judgment for the defendants.

 

On appeal, the plaintiff raised three challenges: (1) that the district court should not have dismissed one of the agency employees as a defendant; (2) that entry of a stay pending summary judgment was improper, and (3) the district court erred on the merits.  The first two issues were easy.  First, the Seventh Circuit fell into line with the D.C., Fifth, and Ninth Circuits in holding that a plaintiff may not sue an individual agency employee for violating FOIA.  Second, entry of a stay pending summary judgment was well within the court’s “considerable discretion to manage the court’s docket to ensure the ‘just, speedy, and inexpensive’ resolution” of the case. 

On to the merits. 

The Seventh Circuit held that the undisputed facts showed that the FDA’s search for responsive documents was reasonable.  The agency searched its database.  The agency also had the recipients of the plaintiff’s letters and those representatives with whom the plaintiff had met search their files for responsive documents.  That was enough.  (We would be well-pleased if courts would follow Judge Herndon’s exquisite sense of reasonableness when assessing our client’s responses to discovery requests.)  The main issue in play was the applicability of the FOIA exemptions.  Here there was a procedural problem.  The plaintiff had the agency’s Vaughn indices yet did not point to specific claims of exemption with which he disagreed.  Nor did he file the Vaughn indices on appeal.  The Seventh Circuit was annoyed.  It advised future litigants to file such indices on appeal.  Meanwhile, the Henson appellate record was bereft of the sort of record that might permit the court to overturn the lower court’s decision.  In any event, the lower court’s decision seemed correct with respect to all applicable exemptions. There was certainly no clear error.

Exemption 4 under FOIA protects from disclosure “matters that are … trade secrets and commercial or financial information obtained from a person and privileged or confidential.”  That exemption, like the things defendants try to protect in standard confidentiality orders, applies when disclosing the contested information would cause “substantial competitive harm to the firm that owns the information.”  One of the document categories the FDA refused to produce was information regarding the raw materials used by the manufacturer of the glucose monitor.  That information was never publicly disclosed by the manufacturer, “nor is there evidence that the raw materials do not have economic value by virtue of remaining confidential.” 

Exemption 5 allows an agency to withhold “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.”  In withholding information pursuant to exemption 5, the FDA detailed “on an individual basis the topics discussed by the agency’s employees and the purposes for the communications.”  The plaintiff did not contradict any of the agency’s representations.  There was no showing of error, much less clear error.

Finally, exemption 6 excuses the disclosure of “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”  The Seventh Circuit held that the “revelation of personal identifying information tips the scales in favor of non-disclosure.”  Hearkening back to the Watergate-era concerns animating the Privacy Act amendments, the Henson court observed that FOIA “requires transparency from the government – not the manufacturer’s patients and employees.”