Case Detail

FOIA Project Annotation: Judge Amy Berman Jackson has ruled that the NIH properly invoked a Glomar response to a request from People for the Ethical Treatment of Animals concerning an investigation of three researchers at Auburn University for mistreatment of lab animals. In response to PETA's request for records concerning the investigation and the existence of an agency-required confidentiality agreement concerning the investigation, NIH claimed it could neither confirm nor deny the existence of records because to do so would constitute an unwarranted invasion of privacy under Exemption 7(C) (invasion of privacy concerning law enforcement records). PETA argued that the researchers did not have a privacy interest because the alleged investigation concerned their professional, not personal, conduct. Jackson noted that "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. [The Circuit case law does not] 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." PETA contended that the existence of the investigation was already publicly known. But Jackson pointed out that "plaintiff has failed to point to anything indicating that the government, as opposed to some other organization or source, has acknowledged the existence of the investigation." PETA provided an interoffice memo from the Agriculture Department indicating that PETA's complaints against the Auburn researchers were partially valid. Jackson observed that "it cannot be said that a non-authenticated interoffice memo is tantamount to public acknowledgement of the existence of an investigation relating to the three named individuals." PETA argued that there was a public interest in knowing whether researchers using federal funding were treating lab animals humanely. Finding that this was not a valid public interest under Reporters Committee, Jackson responded that "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." The agency had asserted that PETA failed to exhaust administrative remedies because it filed its administrative appeal after the time for doing so had expired. But Jackson rejected the claim, noting that "PETA did not attempt to bypass the administrative review process; instead, it reiterated its requests in a document sent to NIH six months later. NIH then processed that complaint and responded to those requests. As a result, this Court will review PETA's [request] because there are not prudential considerations that would militate in favor of dismissal."
Issues: Exemption 7(C) - Invasion of privacy concerning law enforcement records, Determination - Glomar response

FOIA Project Annotation: Judge Amy Berman Jackson has ruled that PETA is entitled to attorney's fees for its litigation against NIH concerning records about the investigation of animal researchers at Auburn University, but because the relief the organization was granted on appeal to the D.C. Circuit was so narrow that only ten percent of its fee request should be granted. PETA had submitted complaints to both NIH and the Department of Agriculture based on its own undercover investigation of research using animals at Auburn University. PETA then made several FOIA requests to NIH for records concerning any investigations the agency took against two researchers at Auburn University whose research was funded by NIH as well as a colleague. PETA learned as a result of a request made under the Alabama Open Records Act concerning the three Auburn researchers that Auburn has signed a confidentiality agreement with NIH that prohibited the university from disclosing information. PETA made two further requests to NIH for records concerning the researchers and the confidentiality agreement. NIH invoked a Glomar response neither confirming nor denying the existence of records. Jackson upheld the agency's Glomar response and PETA appealed to the D.C. Circuit. The D.C. Circuit upheld the Glomar response to the extent that it pertained to the three researchers, but indicated that because PETA's request could be read to request records on investigations the agency undertook of Auburn University, the Glomar response did not cover such records and the agency was obligated to search for them. The agency subsequently conducted a search and concluded that it had never received PETA's complaint letter and had never conducted an investigation of Auburn or the researchers. PETA then filed a motion for $227,000 in attorney's fees, arguing that the D.C. Circuit's ruling that the Glomar response was overbroad entitled them to fees. NIH argued that PETA was not the prevailing party because the relief it was granted was not substantial enough. But Jackson noted that "while the Court agrees that the sum total of plaintiff's victory in this case was small, the test is not merely the size of the relief obtained but whether plaintiff obtained some judicial relief on the merits that resulted in a 'change in the legal relationship' between the parties. Indeed, the degree of plaintiff's success is relevant to the size of reasonable fees, not to its eligibility for a fee award." Jackson found that the fact that the agency did not have any responsive records was not dispositive either. She pointed out that "if the agency had responsive documents that fell within the broader request, it would have been required to release them to PETA. The fact that it did not have responsive documents does not negate the fact that the D.C. Circuit's ruling 'changed the legal relationship' between PETA and NIH." Jackson indicated that the public interest factor did not weigh in favor of either party. She noted that "no documents were produced and the litigation did not in fact generate any information about how NIH responds to animal welfare complaints or the way it processes FOIA requests. Since nothing was produced and no information was gleaned, there was nothing 'to add to the fund of information that citizens many use in making vital political choices.'" By contrast, however, Jackson observed that the information requested was potentially valuable to the public interest. She pointed out that "if on remand defendant had produced 'documents showing that, in response to complaints filed against the named researchers, the agency conducted an investigation other than one targeting the researchers,' then the litigation could potentially have shed light on both of those practices." She then found that NIH's position was reasonable. She noted that "the D.C. Circuit found the Court's reading of the request to be 'understandable,' and it held that the Glomar response 'would be fully warranted' if PETA's request was interpreted to be confined to records revealing the existence of an investigation of the three researchers." Jackson concluded that PETA was entitled to ten percent of its fee request. She observed that "it prevailed only to the extent the request could be broadly read to seek other documents. And even with respect to that category of documents, it turned out there were no responsive documents. Given the narrow slice of relief that PETA obtained, the Court finds that a reasonable fee award is ten percent of PETA's claimed amount, or $22,724."
Issues: Litigation - Attorney's fees - Prevailing party, Litigation - Attorney's fees - Entitlement - Reasonable Basis for Withholding

Date Filed	Doc #	Docket Text
2010-10-27	1	COMPLAINT against NATIONAL INSTITUTES OF HEALTH, DEPARTMENT OF HEALTH AND HUMAN SERVICES ( Filing fee $ 350, receipt number 4616033731) filed by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS. (Attachments: # 1 Civil Cover Sheet)(dr) (Entered: 10/27/2010)
2010-10-27		SUMMONS (3) Issued as to NATIONAL INSTITUTES OF HEALTH, DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. Attorney and U.S. Attorney General (dr) (Entered: 10/27/2010)
2010-10-27	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS (dr) (Entered: 10/27/2010)
2010-11-05	3	NOTICE of Appearance by Marina Utgoff Braswell on behalf of NATIONAL INSTITUTES OF HEALTH, DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) (Entered: 11/05/2010)
2010-11-16	4	Unopposed MOTION for Extension of Time to File Response/Reply to Complaint by NATIONAL INSTITUTES OF HEALTH, DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) (Entered: 11/16/2010)
2010-11-17		MINUTE ORDER: Upon consideration of 4 defendant's motion to enlarge time to file a response to plaintiff's complaint, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that defendant shall file its response by not later than December 6, 2010. SO ORDERED. Signed by Judge John D. Bates on 11/17/2010. (lcjdb2) (Entered: 11/17/2010)
2010-12-06	5	ANSWER to 1 Complaint by NATIONAL INSTITUTES OF HEALTH, DEPARTMENT OF HEALTH AND HUMAN SERVICES.(Braswell, Marina) (Entered: 12/06/2010)
2010-12-08	6	ORDER setting the initial scheduling conference for January 11, 2011, at 9:00 a.m. in Courtroom 8. See Order for details. Signed by Judge John D. Bates on 12/8/2010. (lcjdb2) (Entered: 12/08/2010)
2011-01-06	7	MEET AND CONFER STATEMENT. (Braswell, Marina) (Entered: 01/06/2011)
2011-01-10	8	NOTICE of Appearance by Jessica Almy on behalf of PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS (Almy, Jessica) (Entered: 01/10/2011)
2011-01-11		Minute Entry: Status Conference held on 1/11/2011 before Judge John D. Bates. (Court Reporter Bryan Wayne) (tb, ) (Entered: 01/11/2011)
2011-01-13	9	ORDER setting schedule for further proceedings. Signed by Judge John D. Bates on 1/13/2011. (lcjdb2) (Entered: 01/13/2011)
2011-01-20		Set/Reset Deadlines: Joint Status Report due by 2/11/2011. (tb, ) (Entered: 01/20/2011)
2011-02-11	10	NOTICE of Joint Proposed Briefing Schedule by NATIONAL INSTITUTES OF HEALTH, DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) (Entered: 02/11/2011)
2011-02-16	11	ORDER setting briefing schedule. See text of Order for details. Signed by Judge John D. Bates on 2/16/2011. (lcjdb2) (Entered: 02/16/2011)
2011-02-16		Set/Reset Deadlines: Summary Judgment motions due by 3/9/2011. Response to Motion for Summary Judgment due by 4/15/2011. Reply to Motion for Summary Judgment due by 5/16/2011. Cross Motions due by 4/15/2011. Response to Cross Motions due by 5/16/2011. Reply to Cross Motions due by 6/6/2011. (lcjdb2) (Entered: 02/16/2011)
2011-03-02		ENTERED IN ERROR......Minute Entry: Status Conference held on 3/2/2011 before Judge John D. Bates: See Order previously entered today. (Court Reporter Bryan Wayne) (tb, ) (Entered: 03/02/2011)
2011-03-02		NOTICE OF CORRECTED DOCKET ENTRY: re Minute Entry: Status Conference was entered in error and counsel is instructed to disregard this entry. (tb, ) (Entered: 03/02/2011)
2011-03-09	12	Unopposed MOTION for Extension of Time to File Dispositive Motion by NATIONAL INSTITUTES OF HEALTH, DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) (Entered: 03/09/2011)
2011-03-10		MINUTE ORDER: Upon consideration of defendants' unopposed motion to enlarge time to file defendants dispositive motion, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that defendant shall file its dispositive motion by not later than March 10, 2011. SO ORDERED. Signed by Judge John D. Bates on 3/10/2011. (lcjdb2) (Entered: 03/10/2011)
2011-03-10	13	MOTION for Summary Judgment by NATIONAL INSTITUTES OF HEALTH, DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Maloney Declaration, # 2 Maloney Declaration Exhibits 1-7, # 3 Maloney Declaration Exhibit 8, # 4 Cornell Declaration, # 5 Cornell Declaration Exhibits, # 6 Mantoan Declaration and Exhibits, # 7 Servis Declaration and Exhibits)(Braswell, Marina). Added MOTION to Dismiss on 3/11/2011 (dr). (Entered: 03/10/2011)
2011-03-29		Case randomly reassigned to U.S. District Judge Amy Berman Jackson. Judge John D. Bates no longer assigned to the case. (gt, ) (Entered: 03/29/2011)
2011-04-07	14	Consent MOTION for Extension of Time to File Response To Government's Motion To Dismiss In Part And For Summary Judgment by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS (Meyer, Katherine) (Entered: 04/07/2011)
2011-04-14		MINUTE ORDER: Upon consideration of 14 plaintiff's consent motion to extend time to file its response to defendant's motion to dismiss in part and for summary judgment, and the entire record herein, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that plaintiff will file its response to defendant's motion by not later than April 29, 2011. SO ORDERED. Signed by Judge John D. Bates on 4/14/2011. (lcjdb2) (Entered: 04/14/2011)
2011-04-29	15	CROSS MOTION for Partial Summary Judgment by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit K, # 11 Exhibit L, # 12 Exhibit M, # 13 Exhibit N, # 14 Exhibit O, # 15 Exhibit P, # 16 Exhibit Q, # 17 Exhibit R, # 18 Exhibit S, # 19 Exhibit T, # 20 Exhibit U, # 21 Exhibit V, # 22 Exhibit W, # 23 Exhibit X, # 24 Exhibit Y, # 25 Exhibit Z, # 26 Exhibit AA, # 27 Exhibit BB, # 28 Exhibit CC, # 29 Exhibit DD, # 30 Exhibit EE, # 31 Exhibit FF, # 32 Exhibit GG, # 33 Exhibit HH, # 34 Exhibit II, # 35 Exhibit JJ, # 36 Declaration Justin Goodman, # 37 Text of Proposed Order Proposed Order)(Almy, Jessica) Modified on 5/2/2011 to enhance docket text (jf, ). (Entered: 04/29/2011)
2011-04-29	16	Memorandum in opposition to re 13 MOTION for Summary Judgment MOTION to Dismiss filed by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS. (Almy, Jessica) (Entered: 04/29/2011)
2011-04-29	17	NOTICE of Filing of Exhibits W1-W3 by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS re 15 MOTION for Partial Summary Judgment (Almy, Jessica) (Entered: 04/29/2011)
2011-05-16	18	Unopposed MOTION for Extension of Time to File Response/Reply as to 15 CROSS MOTION for Partial Summary Judgment, 13 MOTION for Summary Judgment MOTION to Dismiss by NATIONAL INSTITUTES OF HEALTH, DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) (Entered: 05/16/2011)
2011-05-17		MINUTE ORDER granting 18 Unopposed Motion for Extension of Time to File Response/Reply re 15 CROSS MOTION for Partial Summary Judgment, 13 MOTION for Summary Judgment MOTION to Dismiss. The Responses are due by 6/2/2011. Signed by Judge Amy Berman Jackson on 5/17/11. (MT) (Entered: 05/17/2011)
2011-05-17		Set/Reset Deadline: Defendant's Reply in support of the Motion for Summary Judgment and Response to the Cross Motion for Summary Judgment is due by 6/2/2011. (jth) (Entered: 05/17/2011)
2011-06-02	19	Unopposed MOTION for Extension of Time to File Response/Reply as to 15 CROSS MOTION for Partial Summary Judgment, 13 MOTION for Summary Judgment MOTION to Dismiss by NATIONAL INSTITUTES OF HEALTH, DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) (Entered: 06/02/2011)
2011-06-03		MINUTE ORDER granting 19 Unopposed Motion for Extension of Time. The reply to the motion for summary judgment and opposition to the cross motion for summary judgment will be due 6/10/2011 and the reply to the cross motion for summary judgment will be due 7/1/2011. Signed by Judge Amy Berman Jackson on 6/3/11. (MT) (Entered: 06/03/2011)
2011-06-03		Set/Reset Deadlines: Reply to the motion for summary judgment and opposition to the Cross Motion due by 6/10/2011, Reply to the Cross Motion is due by 7/1/2011. (jth) (Entered: 06/03/2011)
2011-06-08	20	Unopposed MOTION for Extension of Time to File Response/Reply as to 15 CROSS MOTION for Partial Summary Judgment, 13 MOTION for Summary Judgment MOTION to Dismiss by NATIONAL INSTITUTES OF HEALTH, DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) (Entered: 06/08/2011)
2011-06-09		MINUTE ORDER granting 20 Unopposed Motion for Extension of Time to File Response re 15 CROSS MOTION for Partial Summary Judgment and Reply re 13 MOTION for Summary Judgment/MOTION to Dismiss. The response is due by 6/17/2011 and the reply is due by 7/8/2011. Signed by Judge Amy Berman Jackson on 6/9/11. (MT) (Entered: 06/09/2011)
2011-06-17	21	Memorandum in opposition to re 15 CROSS MOTION for Partial Summary Judgment filed by NATIONAL INSTITUTES OF HEALTH, DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Braswell, Marina) (Entered: 06/17/2011)
2011-06-17	22	REPLY to opposition to motion re 13 MOTION for Summary Judgment MOTION to Dismiss filed by NATIONAL INSTITUTES OF HEALTH, DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Braswell, Marina) (Entered: 06/17/2011)
2011-07-05	23	Consent MOTION for Extension of Time to File Response/Reply as to 15 CROSS MOTION for Partial Summary Judgment and 21 Memorandum in Opposition to Cross Motion for Partial Summary Judgment by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS (Almy, Jessica) (Entered: 07/05/2011)
2011-07-05		MINUTE ORDER granting 23 Consent Motion for Extension of Time to File Reply re 15 CROSS MOTION for Partial Summary Judgment. The reply will be due by 7/15/2011. Signed by Judge Amy Berman Jackson on 7/5/2011. (MT) (Entered: 07/05/2011)
2011-07-15	24	REPLY to opposition to motion re 15 CROSS MOTION for Partial Summary Judgment filed by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS. (Attachments: # 1 Exhibit Pl. Ex. KK, Letter FOIA Appeal)(Almy, Jessica) Modified on 7/15/2011 to enhance docket text (jf, ). (Entered: 07/15/2011)
2011-09-07	25	NOTICE OF SUPPLEMENTAL AUTHORITY by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS (Meyer, Katherine) (Entered: 09/07/2011)
2012-04-10	26	ORDER granting defendant's 13 Motion for Summary Judgment; denying defendant's 13 Motion to Dismiss; denying plaintiff's 15 Motion for Partial Summary Judgment. Accordingly, Count I and III are dismissed without prejudice, and judgment is entered for the defendant on Count II. Signed by Judge Amy Berman Jackson on 4/10/2012. (lcabj2) (Entered: 04/10/2012)
2012-04-10	27	MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 4/10/2012. (lcabj2) (Entered: 04/10/2012)
2012-06-06	28	NOTICE OF APPEAL TO DC CIRCUIT COURT re 26 Order, 27 Memorandum Opinion by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS. Filing fee $ 455, receipt number 0090-2959902. Fee Status: Fee Paid. Parties have been notified. (Attachments: # 1 DDC Notice of Appeal)(Almy, Jessica) Modified to add links on 6/7/2012 (znmw, ). (Entered: 06/06/2012)
2012-06-07	29	Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 28 Notice of Appeal to DC Circuit Court,. (znmw, ) (Entered: 06/07/2012)
2012-06-12		USCA Case Number 12-5183 for 28 Notice of Appeal to DC Circuit Court, filed by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS. (jf, ) (Entered: 06/12/2012)
2012-11-06	30	ORDER of USCA as to 28 Notice of Appeal to DC Circuit Court, filed by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS ; ORDERED that the motion for summary affirmance be granted as to the dismissal of Counts I and III; FURTHER ORDERED that the motion for summary affirmance be denied as to the remaining claim. USCA Case Number 12-5183. (md, ) (Entered: 11/16/2012)
2014-05-08	31	MANDATE of USCA (certified copy) as to 28 Notice of Appeal to DC Circuit Court, filed by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS ; ORDERED and ADJUDGED that the District Court's grant of summary judgement to NIH as to PETA's third FOIA request be affirmed, and the grant of summary judgment to NIH in connection with PETA's second FOIA request be vacated and be remanded for proceedings consistent with this opinion, in accordance with the opinion of the court filed herein this date. USCA Case Number 12-5183. (Attachments: # 1 USCA Opinion)( md, ) (Entered: 05/12/2014)
2014-05-14	32	NOTICE OF WITHDRAWAL OF APPEARANCE as to PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS. Attorney Jessica Almy terminated. (Almy, Jessica) (Entered: 05/14/2014)
2014-05-29		MINUTE ORDER. It is ORDERED that the parties file by June 12, 2014 a proposed schedule for further proceedings consistent with the opinion issued in this case by the United States Court of Appeals for the District of Columbia Circuit. Signed by Judge Amy Berman Jackson on 5/29/14. (DMK) (Entered: 05/29/2014)
2014-05-30		Set/Reset Deadlines: The parties shall file a proposed schedule for further proceedings in this case by 6/12/2014. (jth) (Entered: 05/30/2014)
2014-06-11	33	STATUS REPORT Jointly Submitted By Parties by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS. (Meyer, Katherine) (Entered: 06/11/2014)
2014-06-12		MINUTE ORDER. In light of the parties' joint status report 33 filed on June 11, 2014, it is ORDERED that by July 17, 2014 defendant shall advise plaintiff of the results of its new search for responsive information consistent with the Court of Appeals' March 14, 2014 decision. It is further ORDERED that a joint status report is due by July 28, 2014. Signed by Judge Amy Berman Jackson on 6/12/14. (DMK) (Entered: 06/12/2014)
2014-06-12		Set/Reset Deadlines: Joint Status Report is due by 7/28/2014. (jth) (Entered: 06/12/2014)
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