Case Detail

FOIA Project Annotation: Judge Tanya Chutkan has ruled that the NIH conducted an adequate search for emails sent or received by two senior officials from May-July 2014 regarding maternal deprivation experiments conducted on rhesus macaques at NIH's Poolesville facility from People for the Ethical Treatment of Animals and that the agency properly withheld records under Exemption 6 (invasion of privacy), but had not justified its claims under Exemption 5 (privileges). The agency searched the two officials' government and personal accounts for responsive records, locating 200 pages. NIH disclosed 72 pages in full and 30 pages in part and withheld 99 pages entirely under Exemption 5 and Exemption 6. Three months later, however, NIH changed is position dramatically, insisting that 119 pages of the 200 total pages were non-responsive to the request and pulled those pages from the group of pages still in dispute. PETA argued that because of the agency's dramatic change in position, its Vaughn index was submitted in bad faith. Chutkan disagreed, noting that 'while it is unusual for an agency to change its findings about responsiveness the day before filing a motion for summary judgement, there is no authority â€" and PETA cites none â€" indicating that such action is prohibited or presumptively suspect. . .The fact that PETA disagreed with NIH's classification is not enough to undermine the presumption of good faith accorded to agency declarations." PETA argued that the agency's search was inadequate because the use of terms varied somewhat from office to office. But Chutkan noted that "here, NIH use the same core terms throughout and chose to augment them for certain searches." PETA challenged the agency's Exemption 6 redactions of personal emails, claiming such information was already publicly available. Chutkan pointed out, however, that "the fact that information 'is not wholly private does not mean that an individual has no interest in limiting disclosure or dissemination of the information.'" Citing a series of recent district court decisions accepting that the deliberative process privilege applied to press or Congressional inquiries, Chutkan rejected the NIH's claim that the privilege extended to queries from non-profits. She explained that "there are similarities between an agency's response to a press inquiry and an agency's response to a non-profit, but applying the privilege here, to a non-profit's request for a meeting, would certainly expand the scope of Exemption 5. If the privilege protected the process of responding to such a request, there would be no limiting principle preventing expansion of the privilege to protect the preparation of all agency communication with outside entities. This court declines to initiate such an expansion because HHS bears the burden of establishing the privilege by a reasonable certainty, and because Exemption 5 is to be construed 'as narrowly as consistent with efficient Government operation.'"
Issues: Adequacy - Search, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2017-07-14	1	COMPLAINT against UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES ( Filing fee $ 400 receipt number 0090-5032141) filed by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons U.S. Dep't of Health & Human Services, # 3 Summons U.S. Attorney's Office, # 4 Summons U.S. Attorney General's Office)(Seber, John) (Entered: 07/14/2017)
2017-07-17		Case Assigned to Judge Tanya S. Chutkan. (zmd) (Entered: 07/17/2017)
2017-07-26	2	Corporate Disclosure Statement by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.. (Seber, John) (Main Document 2 replaced on 7/27/2017) (znmw). (Entered: 07/26/2017)
2017-07-26	3	SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (zmd) (Entered: 07/26/2017)
2017-08-09	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/7/2017. Answer due for ALL FEDERAL DEFENDANTS by 9/6/2017. (Seber, John) (Entered: 08/09/2017)
2017-08-09	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 8/7/2017. (Seber, John) (Entered: 08/09/2017)
2017-08-09	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 8/7/2017 (Seber, John) (Entered: 08/09/2017)
2017-08-16	7	NOTICE of Appearance by Gabriel Zane Walters on behalf of PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. (Walters, Gabriel) (Entered: 08/16/2017)
2017-09-06	8	NOTICE of Appearance by Joshua M. Kolsky on behalf of UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Kolsky, Joshua) (Entered: 09/06/2017)
2017-09-06	9	ANSWER to Complaint by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES.(Kolsky, Joshua) (Entered: 09/06/2017)
2017-09-08		MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. The requirements of LCvR 16.3 and Rule 26(f) of the Federal Rules of Civil procedure appear to be inapplicable. IT IS HEREBY ORDERED that the parties shall meet and confer and propose a schedule for proceeding in this matter. The schedule shall address the status of Plaintiff's FOIA request, the anticipated number of documents responsive to Plaintiff's FOIA request, the anticipated date(s) for release of the documents requested by Plaintiff, whether a motion for an Open America stay is likely in this case, whether a Vaughn index will be required in this case, whether and when either party anticipates filing a dispositive motion, and any other pertinent issues. The parties shall file a joint status report that addresses these issues and that contains a proposed schedule and proposed order not later than 9/29/17. Signed by Judge Tanya S. Chutkan on 9/8/17. (DJS) (Entered: 09/08/2017)
2017-09-08		Set/Reset Deadlines: Joint Status Report due by 9/29/2017. (tb) (Entered: 09/08/2017)
2017-09-29	10	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 09/29/2017)
2017-10-03		MINUTE ORDER: Having considered the parties' Joint Status Report 10 , it is hereby ordered that the parties shall adhere to the following schedule: Defendant shall complete its document production in this case by October 30, 2017. The parties shall file another Joint Status Report by November 13, 2017 identifying: (i) whether any disputed issues remain; (ii) if necessary, the proposed briefing schedules for (a) Plaintiff to seek leave to take discovery and (b) for both parties to file dispositive motions; and (iii) whether it will be necessary for Defendant to prepare a Vaughn Index. A proposed order shall accompany the Joint Status Report. Signed by Judge Tanya S. Chutkan on 10/3/17. (DJS) (Entered: 10/03/2017)
2017-10-04		Set/Reset Deadlines: Joint Status Report due by 11/13/2017. (tb) (Entered: 10/04/2017)
2017-11-13	11	Joint STATUS REPORT by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.. (Attachments: # 1 Text of Proposed Order)(Seber, John) (Entered: 11/13/2017)
2017-11-14	12	SCHEDULING ORDER: Plaintiff will file its motion seeking leave to take discovery by December 22, 2017. Defendant will file its opposition by January 12, 2018. Plaintiff will file its reply by January 19, 2018. Defendant will file its motion for summary judgment 21 days after: (a) the close of discovery; (b) the entry of an order denying Plaintiff's motion seeking leave to take discovery; or (c) Plaintiff's deadline to file a motion for leave to seek discovery, in the event Plaintiff does not seek leave; Plaintiff will file its opposition and/or cross-motion for summary judgment 21 days later; Defendant will file its reply and/or opposition to PlaintiffS cross-motion 14 days later; and Plaintiff will file its reply, if applicable, 14 days later. Signed by Judge Tanya S. Chutkan on 11/14/17. (DJS) (Entered: 11/14/2017)
2017-11-15		Set/Reset Deadlines: Motion for leave to take discovery due by 12/22/2017. Response due by 1/12/2018. Summary Judgment motion due by 1/19/2018. (tb) (Entered: 11/15/2017)
2018-01-08	13	Consent MOTION for Extension of Time to File Summary Judgment Motion by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 01/08/2018)
2018-01-08		MINUTE ORDER: Granting 13 Consent Motion for Extension of Deadlines. Defendant's motion for summary judgment due January 26, 2018. Signed by Judge Tanya S. Chutkan on 1/8/18. (DJS) (Entered: 01/08/2018)
2018-01-09		Set/Reset Deadlines: Defendant's Motion for Summary Judgment is due by 1/26/2018. (jth) (Entered: 01/09/2018)
2018-01-23	14	MOTION for Extension of Time to File Summary Judgment Motion by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 01/23/2018)
2018-01-24	15	NOTICE OF NON-OPPOSITION by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. re 14 MOTION for Extension of Time to File Summary Judgment Motion (Seber, John) (Entered: 01/24/2018)
2018-01-29		MINUTE ORDER: Granting 14 Motion for Extension of Time to File Motion for Summary Judgment. Defendant's Motion due February 9, 2018. Signed by Judge Tanya S. Chutkan on 1/29/18. (DJS) (Entered: 01/29/2018)
2018-01-29		Set/Reset Deadlines: Defendant's Motion for Summary Judgment due by 2/9/2018. (tth) (Entered: 01/29/2018)
2018-02-09	16	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Declaration, # 2 Exhibit A (Vaughn Index), # 3 Text of Proposed Order)(Kolsky, Joshua) (Entered: 02/09/2018)
2018-02-21	17	NOTICE OF WITHDRAWAL OF APPEARANCE as to PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.. Attorney John Seber terminated. (Seber, John) (Entered: 02/21/2018)
2018-02-21	18	Consent MOTION for Extension of Time to File Response/Reply as to 16 MOTION for Summary Judgment by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. (Attachments: # 1 Text of Proposed Order Proposed Order)(Walters, Gabriel) (Entered: 02/21/2018)
2018-02-21	19	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- David Albert Schwartz, :Firm- PETA Foundation, :Address- 1536 16th Street NW. Phone No. - 2024837382. Fax No. - 2025402208 Filing fee $ 100, receipt number 0090-5341439. Fee Status: Fee Paid. by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. (Attachments: # 1 Declaration In Support of Motion to Appear Pro Hac Vice, # 2 Text of Proposed Order Granting Motion to Appear Pro Hac Vice)(Walters, Gabriel) (Entered: 02/21/2018)
2018-02-26		MINUTE ORDER: Granting 18 Consent Motion for Extension of Time to File Response/Reply. Plaintiff's response due March 23, 2018. Signed by Judge Tanya S. Chutkan on 2/26/18. (DJS) (Entered: 02/26/2018)
2018-02-27		Set/Reset Deadlines: Response to Motion for Summary Judgment due by 3/23/2018. (tb) (Entered: 02/27/2018)
2018-02-28		MINUTE ORDER: Granting in part and denying in part 19 Motion for Admission Pro Hac Vice. Attorney David Albert Schwart may be heard in open court on behalf of Plaintiff, but may not file papers in this court. See Local Civil Rule 83.2(c)(2) ("An attorney who engages in the practice of law from an office located in the District of Columbia must be a member of the District of Columbia Bar AND the Bar of this Court to file papers in this Court."). Signed by Judge Tanya S. Chutkan on 2/28/18. (DJS) (Entered: 02/28/2018)
2018-03-22	20	Memorandum in opposition to re 16 MOTION for Summary Judgment filed by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.. (Attachments: # 1 Statement of Facts, # 2 Declaration, # 3 Text of Proposed Order)(Walters, Gabriel) (Entered: 03/22/2018)
2018-03-22	21	AFFIDAVIT re 20 Memorandum in opposition to re 16 MOTION for Summary Judgment Declaration of Gabriel Walters filed by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.. (Attachments: # 1 Exhibit HHS letter dated Feb. 8, 2018, # 2 Exhibit Purportedly non-responsive records, # 3 Exhibit Responsive records 1, # 4 Exhibit Responsive records 2, # 5 Exhibit Responsive records 3)(Walters, Gabriel) Modified event title on 3/23/2018 (znmw). (Entered: 03/22/2018)
2018-04-04	22	Consent MOTION for Extension of Time to File Response/Reply as to 16 MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 04/04/2018)
2018-04-05		MINUTE ORDER: Granting 22 Consent Motion for Extension of Time to File Response/Reply. Defendant's reply due April 12, 2018. Signed by Judge Tanya S. Chutkan on 4/5/18. (DJS) (Entered: 04/05/2018)
2018-04-06		Set/Reset Deadlines: Reply due by 4/12/2018. (tb) (Entered: 04/06/2018)
2018-04-12	23	REPLY to opposition to motion re 16 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Declaration (Weiser), # 2 Exhibit A to Weiser Declaration, # 3 Exhibit 1)(Kolsky, Joshua) (Entered: 04/12/2018)
2018-12-18	24	NOTICE OF SUBSTITUTION OF COUNSEL by Paul Cirino on behalf of UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES Substituting for attorney Joshua M. Kolsky (Cirino, Paul) (Entered: 12/18/2018)
2020-06-01	25	MEMORANDUM OPINION regarding Defendant's 16 Motion for Summary Judgment. Signed by Judge Tanya S. Chutkan on 6/1/2020. (lcdl) (Entered: 06/01/2020)
2020-06-01	26	ORDER granting in part and denying in part Defendant's 16 Motion for Summary Judgment. The parties shall meet and confer and file a JOINT proposal for moving forward with this case no later than July 1, 2020. See order for details. Signed by Judge Tanya S. Chutkan on 6/1/2020. (lcdl) (Entered: 06/01/2020)
2020-06-02		Set/Reset Deadlines: Joint Proposal due by 7/1/2020.(tb) (Entered: 06/02/2020)
2020-06-02		MINUTE ORDER: The parties' joint status report due on 7/1/2020 shall be accompanied by a proposed order. Signed by Judge Tanya S. Chutkan on 6/2/2020. (DJS) (Entered: 06/02/2020)
2020-06-03		Set/Reset Deadlines: Joint Status Report due by 7/1/2020. (tb) (Entered: 06/03/2020)
2020-07-01	27	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Text of Proposed Order)(Cirino, Paul) (Entered: 07/01/2020)
2020-07-06		MINUTE ORDER: Having considered the parties' joint status report 27 , it is hereby ordered that the parties shall file another joint status report by 8/3/2020 and every 30 days thereafter. To the extent the report contains a proposed production or briefing schedule, the report shall be accompanied by a proposed order. Signed by Judge Tanya S. Chutkan on 7/6/2020. (DJS) (Entered: 07/06/2020)
2020-07-07		Set/Reset Deadlines: Joint Status Report due by 8/3/2020. (tb) (Entered: 07/07/2020)
2020-08-03	28	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Cirino, Paul) (Entered: 08/03/2020)
2020-09-02	29	STIPULATION of Dismissal by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.. (Walters, Gabriel) (Entered: 09/02/2020)
2020-09-02		MINUTE ORDER: Having considered the parties' joint stipulation of dismissal, it is hereby ordered that this action is dismissed with prejudice. Each party to bear its own costs. Signed by Judge Tanya S. Chutkan on 9/2/2020. (DJS) (Entered: 09/02/2020)
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