270 F. Supp. 3d 46
D.D.C.2017Background
- King & Spalding filed FOIA requests seeking records HHS and DOJ received about its client Abiomed from an anonymous source between Jan 1 and Oct 31, 2012.
- Defendants produced some records but withheld 67 pages in full, invoking FOIA Exemptions 7(C) (privacy) and 7(D) (confidential source) and also cited Exemption 6 (but relied mainly on 7(C)).
- Plaintiff suspects a competitor (Maquet) or persons acting for Maquet were the source and submitted an affidavit suggesting a former Maquet executive admitted participating in a plan to submit complaints against Abiomed.
- Defendants withheld names of government personnel, the source’s attorney, and third parties appearing in source-provided documents; they claim disclosure would invade privacy and reveal a confidential source.
- The parties dispute whether Exemptions 7(C) and 7(D) apply to (a) the withheld substantive material and (b) identifying information, and whether the source is an individual or an entity—an issue central to applying both exemptions.
- The court found the existing affidavits do not disclose whether the source was an individual or an entity, a threshold factual question that prevents resolution on summary judgment; it denied both cross-motions without prejudice and ordered supplemental proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Exemptions 7(C) and 7(D) justify withholding the 67 pages | Records should be disclosed; plaintiff challenges privacy/confidential-source assertions | Withholdings appropriate under 7(C) and 7(D) to protect privacy and source identity | Denied resolution on present record; further factual development required |
| Whether the source is an entity (corporation) or an individual, affecting 7(C) protection | Source likely an entity (Maquet or agents), so corporate identity not protected by 7(C) | Source identity unknown; exemptions may apply depending on status | Court requires defendants to clarify whether source was entity or individual before ruling |
| Whether an implied assurance of confidentiality exists for 7(D) purposes | Plaintiff disputes that an implied assurance exists, especially if source is an institution | Government must show probative evidence of an express or implied assurance | Court: cannot assess 7(D) without knowing whether source was individual or institutional; defendants must provide more information |
| Whether names of government personnel, source's attorney, and third parties may be redacted under 7(C) | Plaintiff challenges overbroad redactions | Government contends such names are protectable personal information under 7(C) | Court notes redaction of gov personnel/third parties involves standard 7(C) balancing and may be permissible; directed parties to brief distinctions further |
Key Cases Cited
- Davis v. U.S. Dep't of Justice, 968 F.2d 1276 (D.C. Cir. 1992) (requires balancing privacy interests against public interest under Exemption 7(C))
- Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice, 746 F.3d 1082 (D.C. Cir. 2014) (Government must present probative evidence of an express or implied assurance for Exemption 7(D))
- FCC v. AT&T, 562 U.S. 397 (Sup. Ct. 2011) (Exemption 7(C) privacy protection does not extend to corporations)
- U.S. Dep't of Justice v. Landano, 508 U.S. 165 (Sup. Ct. 1993) (distinguishes individual versus institutional sources when assessing implied assurances of confidentiality)
- Stern v. FBI, 737 F.2d 84 (D.C. Cir. 1984) (addressing scope of privacy interests and redactions in law enforcement records)
- Beck v. U.S. Dep't of Justice, 997 F.2d 1489 (D.C. Cir. 1993) (discusses Exemption 7(C) and privacy interests in law enforcement contexts)
- Schrecker v. U.S. Dep't of Justice, 349 F.3d 657 (D.C. Cir. 2003) (privacy balancing for government personnel and third parties)