New Hampshire Right to Life v. United States Department of Health & Human Services
778 F.3d 43
1st Cir.2015Background
- In 2011 HHS directly awarded a replacement Title X grant to Planned Parenthood of Northern New England after New Hampshire refused to subgrant funds to Planned Parenthood and no replacement provider could be found.
- Planned Parenthood submitted application materials including a Manual of Medical Standards, fee schedules, and personnel policies; HHS required additional institutional files as part of the award process.
- New Hampshire Right to Life filed a FOIA request for documents relating to the direct award; HHS produced many pages but withheld portions relying on FOIA Exemptions 4 (confidential commercial information) and 5 (deliberative/privileged government communications).
- Planned Parenthood unsuccessfully sought to enjoin release of portions of its Manual; the district court remanded and HHS redacted additional material, then both parties moved for summary judgment on exemption claims.
- The district court upheld most of HHS’s withholdings under Exemptions 4 and 5 but ordered disclosure of a few items; HHS appealed the remaining disclosure rulings.
- The First Circuit affirmed, holding HHS met its burden to withhold Planned Parenthood’s Manual and fee-related documents under Exemption 4 and to withhold internal HHS deliberative and privileged communications under Exemption 5.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Planned Parenthood’s Manual and related materials are "commercial" and "confidential" under FOIA Exemption 4 | Right to Life: Nonprofit Planned Parenthood cannot possess "commercial" information; disclosure would not cause substantial competitive harm | HHS: Documents plainly concern operations and pricing; even nonprofits can possess commercial info; disclosure would likely harm competitive position | Held: Materials are commercial and confidential; Exemption 4 applies (manual, descriptive letter, fees policy, fee-schedule steps withheld) |
| Whether HHS internal communications are protected by Exemption 5 (deliberative process and privileges) | Right to Life: Some documents are post-decisional (created after decision) and therefore not protected; HHS waived privilege by adopting counsel’s advice as agency policy | HHS: Communications are predecisional and deliberative or privileged (attorney-client/work product); agency did not adopt or disclose counsel’s reasoning | Held: Documents are predecisional/deliberative or privileged; Exemption 5 applies; no waiver by mere reliance on counsel’s conclusions |
| Whether "actual competition" and likelihood of substantial harm exist for Exemption 4 | Right to Life: No competition in the 2011 sole-source award context; no substantial competitive harm shown | HHS: Planned Parenthood competes with hospitals and community clinics for patients and future grants; pricing and operational manuals would aid competitors | Held: Actual competition exists and disclosure would likely cause substantial competitive harm; Exemption 4 satisfied |
| Temporal decision-point for Exemption 5 analysis (when decision was "made") | Right to Life: Decision occurred by Aug. 10 White House briefing, making later documents post-decisional | HHS: Decision was finalized Aug. 19 when OASH executive approved the sole-source justification; later documents relate to subsequent agency decisions | Held: Decision date is Aug. 19; documents created before that or tied to subsequent agency decisions (e.g., public announcement, response to protest) are predecisional and protected |
Key Cases Cited
- Carpenter v. United States Dep't of Justice, 470 F.3d 434 (1st Cir.) (standard of review for FOIA summary judgment)
- Church of Scientology Int'l v. United States Dep't of Justice, 30 F.3d 224 (1st Cir.) (FOIA disclosure policy and burden on government)
- 9 to 5 Org. for Women Office Workers v. Board of Governors, 721 F.2d 1 (1st Cir.) (Exemption 4 confidentiality standards)
- Pub. Citizen Health Research Grp. v. Food & Drug Admin., 704 F.2d 1280 (D.C. Cir.) (definition and treatment of "commercial" information under FOIA)
- Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir.) (Exemption 4 confidentiality factors)
- Nat'l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132 (U.S.) (Exemption 5 and deliberative process privilege)